If such impersonal surveillance on the orders of the president for genuine national security purposes without court or other explicit authorization does violate some constitutional norm, then we are faced with a genuine dilemma and not an occasion for finger-pointing and political posturing.
Yes, the occasion is for those who seek such surveillance powers to consult with the rest of us -- through our elected representatives -- to find a Constitutional solution. The incorrect solution is to proceed as one wishes and then claim the excuse of necessity. Statists like Fried and, I fear our new Chief Justice Roberts, appear to me to have "Married the State." The all-wise government knows best. When will they get the point that the furor over Bush's usurpation of power has little to do with what he actually did -- if he had gone to FISA we would grumble but at least he would be nominally following the law. The problem is his condescension and play-acting at being our "leader" by refusing to consult with the rest of us (figuratively speaking).
What I find odd about Fried's remote passive-voice stance —
"The president claims that congressional authorization for military action against Al Qaeda, together with his inherent constitutional powers, make such action lawful. There is some plausibility to that claim but until tested in the courts it is impossible to give a definitive opinion about it. (italics added)
— is that he implies that there is some innate, inherent message in the Constitution which the courts will "discover" rather than, as I would see it, "decide" or even "create." Ideas about what the law "is" ("should be" to most common-sense people) will be "tested" in the crucible of the courts and the truth will emerge. It's an oddly passive way of discussing one of the great issues of the the day -- any day. Of course the Supreme Court will ultimately decide what the law of the land shall be — but that's not because they are wisest but merely final.
UPDATE: As I mentioned a few posts ago, it's interesting that the lawyers seem to have adopted the medium of the blog so rapidly and some rather eminent names amongst them. In particular I have been reading the blog of the University of Chicago Law School. I've left some comments — rhetorical questions for those who favor King George — at a post titled The President's "Inherent" Power. Now, Professor Geoffrey Stone has blogged on Bush's Spy Program and the Fourth Amendment. The punch line for me — why this whole issue is so important — (quoting) from the Supreme Court:
History abundantly documents the tendency of Government - however benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies.