Yes, if Bush started a domestic espionage program on 9/12, in the midst of a crisis, no one would fault him for excessive zeal. Maybe it would be illegal, maybe not, but everyone understands exigency in emergencies. And everyone would have been prepared to discuss formalizing the program with real oversight.
It's 4 years later, and he's had a chance to get Congressional approval, to clarify the law, to ask the secret FISA court for guidance.
Instead, he concealed the program, expanded it without Congressional input.
(And no, a classified briefing that a Congressperson can't discuss with staff or colleagues is not Congressional input. It isn't legislation, it isn't oversight, and they ignored what critical response they got from Congress.)
John Ashcroft accelerated the destruction of files maintained as part of the FBI's background checks for gun purchases, beginning right after 9/11. The records had been kept for up to 90 days for testing. After 9/11, he shortened the retention to 1 day, and he forbade the FBI from looking up names of suspected terrorists in those records. Could it have been useful to test whether any known terrorist names showed up in those records? You bet. But his commitment to gun rights trumped any concerns about national security.
I don't raise this to get into a thing about guns. I don't care about that just now. I care about the fact that concern for civil liberties was so selective and arbitrary. Ashcroft was increasing the protections of gun records while Bush was reducing protections for phone calls and email.
We're no longer under direct attack. Al Qaeda is a threat, but we don't need drastic, emergency measures. It's time to have a serious debate about policies, rather than just rolling everything into an authorization to use military force.