Let's see if I understand this:

The ACLU is asking the Attorney General for the appointment of a special prosecutor to investigate whether President Bush violated the Foreign Intelligence Surveillance Act.

Okay, fine. Now is this the same ACLU which filed an amicus brief in 2002 claiming that FISA was itself unconstitutional?

Um, can we have a little consistency here, guys? I mean, besides the "Bush Is Always Wrong" meme.

(Found at Strata-Sphere through Stop the ACLU.)

I'm posting my comments here because Charles's site rejects the list formatting that makes this easy to read - it just comes out as unstructured bulleted lists over there, alas.

You don't understand this, but that's OK, because the people you link to are deliberately trying to mislead you - not unusual for "Stop the ACLU," a group dedicated to using its First Amendment rights to take away those who don't hold their "we're in the majority and the majority rules" position.

Read the brief. It becomes clear after just a moment's scanning that it (and the ACLU, which filed it) does not argue that FISA is unconstitutional. FISA lays out procedures for obtaining surveillance of foreign targets for intelligence purposes. (That's why it's the Foreign Intelligence Surveillance Act.)

In 2002, the Bush Administration started trying to use FISA orders, obtained without "normal" judicial oversight (no right to challenge, no public disclosure, very low standard of evidence), in domestic criminal prosecutions. Note the distinct opposition between domestic and foreign, and between intelligence and criminal.

I mean, geez, just read the table of contents (and I hope you appreciate me making this into reasonable HTML from PDF):

2. FISA DOES NOT AUTHORIZE LAW ENFORCEMENT OFFICIALS TO CONTROL SURVEILLANCE FOR CRIMINAL INVESTIGATIONS

1. The structure of the surveillance statutes reflects a constitutionally based distinction between intelligence gathering and law enforcement

1. Electronic surveillance poses extraordinary privacy risks, which Congress has addressed through Title III's rigorous requirements

2. Title III has always regulated electronic surveillance in law enforcement investigations undertaken to protect the national security
3. FISA governs surveillance for foreign intelligence purposes, and not surveillance to gather evidence of criminal conduct
4. The procedures of Title III and FISA are substantially different, and FISA was not intended to be an alternative to Title III in criminal cases affecting the national security

2. The Patriot Act confirmed and clarified the boundaries between the foreign intelligence and law enforcement spheres

   1. The Patriot Act’s significant purpose amendment clarified that foreign intelligence need not be the exclusive purpose of surveillance conducted under FISA’s authority
   2. The Patriot Act’s “significant purpose” amendment must be read in conjunction with the Patriot Act’s coordination amendment
   3. The FISC order contains a set of objective rules that implement the Patriot Act by preventing law enforcement officials from initiating or controlling and directing FISA surveillances

3. FISA IS UNCONSTITUTIONAL TO THE EXTENT IT AUTHORIZES SURVEILLANCE WHOSE PRIMARY OR EXCLUSIVE PURPOSE IS TO OBTAIN EVIDENCE FOR A CRIMINAL PROSECUTION

1. Ordinary Fourth Amendment requirements apply to all searches having law enforcement as their primary or exclusive purpose

2. The Supreme Court’s “special needs” cases confirm that the Fourth Amendment’s ordinary requirements apply to all searches whose primary or exclusive purpose is criminal investigation
3. The government’s theory would suspend ordinary Fourth Amendment requirements not only in espionage and terrorism investigations but in any investigation related to national security36

4. ANY EXPANSION IN FISA SURVEILLANCE AUTHORITY WOULD IMPLICATE NUMEROUS OTHER CONSTITUTIONAL INTERESTS

1. Allowing FISA to be invoked in criminal investigations would raise Fourth Amendment and Due Process concerns because FISA fails to require notice and denies individuals any meaningful opportunity to challenge illegal surveillance
2. Any extension of FISA would chill protected speech and therefore raise serious First Amendment concerns.

It really couldn't be any clearer about arguing that FISA is unconstitutional if used to collect evidence in criminal cases. Then again, "Stop the ACLU" has a vested and big-monied interest in preventing you from understanding the ACLU's clear intent. Sorry they got you.

[minor edits for clarity of intent]