I think you may get a lot of argument on this version of what the NSA program was. First, I agree with fedupjohn's comment about the nature of the program, but for the sake of argument let's accept the BDM version, the program was "wiretapping," the recording of the contents of phone calls, and the government didn't get a warrant for the domestic side of that conversation. There's a basic logical fallicy involved.
All of the calls involved were international. Though the press likes to ignore that you can't find one of them who will outright deny it. They merely try to get around the question by referring to a "domestic spying program." That's the beginning of their lie.
Accepting the fact that the calls involve calls that have at least one end outside of the US we come to the question of the elected government having the power, particularly in time of war, to listen in on communications of our enemies. Even the harshest and most partisan critics of the Bush White House explicitely say that the President has the authority, in fact the responsibility, to try to eavesdrop on Al Qaeda overseas. It is an obvious part of the President's powers under Article II section 2 of the Constitution. That is the legal basis for "wiretapping" the phone calls of Al Qaeda and no one has challenged the legality of doing so when it involves only conversations outside of the United States. It is legal to do this therefore it is legally the equivelant of having a warrant for intercepting these calls.
Now we come to the case involved in the NSA program. The calls in dispute specifically involve a call between a suspected Al Qaeda associate overseas and someone within the US. Therefore the hue and cry that a warrant is required. But remember, the interception of the Al Qaeda foreign calls is already covered as legal. The closest analogy I can draw is a situation where the government has a warrant to eavesdrop on Al Capone's phone but someone insists that they must get a new warrant each time a call is made covering the person on the other end of the phone.
It is utter nonsense. If it's legal to intercept Al Capones' calls then it's also legal to intercept the calls of the people he talks to when he's talking to them. If it's legal to intercept Al Qaeda's calls from Pakistan to someone in Italy it's also legal to intercept those calls to Boston when Al Qaeda is talking to someone there. QED.
Now, when you hear anti-American types like Steponallofus trying to push the notion that Hamdan also makes the NSA program illegal what they're arguing is that the President does have to get a warrant for every intercept done, even if the conversation is entirely overseas. After all, that's the logical conclusion if the enemy has full constitutional rights in a war. Oh, and that whole thing about bombing them or shooting them? Excessive force. Clearly Rodney King time. We must set up a civilian review board and hold these nasty Americans to the letter of the law. Let's prosecute a few Marines, after all, Murtha says they're guilty, so it must be true. Never mind that no such law has ever been contemplated in the history of mankind, if the leftists say it it must be gospel.
I use this analogy all the time. Sometimes I see the light dawn in eyes of the person I'm addressing.
Both Steffie and Howard Kurtz continued to use the "domestic surveillance" meme today.
On a slightly different topic, I recently read that Colleen Rowley, of the FBI, now running for Congress, made her mistake in trying to get permission to look at Moussaoi's computer, by going for a FISA warrant! She was refused, as we all know, but no one brings this up when our bleeding-hearts whine that going to a FISA court is a piece of cake.