Second, he claimed the TSP was allowed by Congress's Authorization to Use Military Force (AUMF) against those responsible for 9/11. Even conservative Republicans like Senators Lindsey Graham and Arlen Specter found this argument ludicrous. The AUMF doesn't mention surveillance, and no one in Congress intended such authorization. In fact, administration efforts to add language pertaining to surveillance inside the U.S. had been rejected. Moreover, FISA had been extensively amended (by the USA Patriot Act) without the extreme of allowing warrantless searches, and Attorney General Alberto Gonzales admitted he was told that Congress wouldn't allow such amendments. So how could Congress have intended the general AUMF language to override FISA's specific prohibition?

Leading constitutional scholars, unsurprisingly, rejected the administration's position and concluded that the program was illegal. Ruling last August in a lawsuit brought by the ACLU against the NSA, Michigan federal judge Anna Diggs Taylor held that the program violated FISA as well as the Constitution's First and Fourth Amendments, and the separation of powers, although a judicial panel said the program could continue while the government appealed.

It was shortly before the government's uphill appellate-court battle, and a day before Gonzalez testified before the Senate Judiciary Committee, that, in the post-election environment, he announced that the TSP would be brought within FISA. The government now argues that this moots Judge Taylor's decision. For this and more than fifty other lawsuits challenging the surveillance, the government also urges dismissal on Catch-22 grounds: the "state secrets privilege" shields such programs, and since the surveillance is secret, the plaintiffs cannot demonstrate the harm that would confer standing to sue.

Open questions include (i) how the FISA court, previously viewed by the administration as too cumbersome, suddenly became agile enough; (ii) whether the FISA court will protect us, given that its legal standards suddenly allowed these "innovative and complex" orders, when the NSA's more relaxed standard previously didn't suffice; (iii) whether the still-secret warrants include constitutionally mandated, fact-based suspicion of individual circumstances or are blanket program-approvals of some kind; and (iv) why we should believe what the administration says now, since the program was masked in secrecy and deception before.

General Hayden and 9/11 Commission Vice Chair Lee Hamilton have both confirmed in Congressional testimony what Hamilton called the "astounding intrusion into the lives of ordinary Americans that is routine today in government." Certainly, NSA technological power can hardly be overstated—and it is growing. Already possessing the most incredible information-gathering capabilities in the world, the NSA has recently complemented its global listening posts and satellites with new technologies, including speech recognition and translation. James Bamford, an eminent chronicler of the NSA (and a plaintiff in the ACLU lawsuit), writes that the NSA is "close to achieving" its "ultimate goal of intercepting and reviewing every syllable and murmur zapping into, out of, or through the United States."

THE PRIVATE SECTOR—Telecommunications companies like AT&T have long and profitably assisted the NSA, and as technology has shifted international communications to U.S. and rich-country hubs in ways that erode the foreign/domestic legal distinctions of FISA described above, they've helped the NSA exploit these trends. Litigation documents and media reports confirm that these companies have allowed the NSA to tap directly into not just undersea cables but also fiber optic cables that enable real-time back-door access to these blurred domestic and international phone, e-mail, VoIP, and instant-message communications. The companies involved have either issued denials—which may be lies that they see as justified for national security purposes—or non-committal statements that they comply with "the law" (presumably as interpreted by the Bush administration).

The companies have particularly assisted a distinct NSA program revealed shortly after the warrantless-eavesdropping TSP program was made public: datamining millions of intercepted American communications. Datamining is increasingly popular in government and business, involving automated review of significant quantities of data to discern patterns and predict and influence behavior. This datamining assumes that the patterns identified can highlight terrorist communications, as distinguished from ordinary communications, in addition to allowing more detailed searches within what one source described as "the largest database ever assembled in the world."

Such datamining recalls the discredited Total Information Awareness (TIA) program run by former Iran-contra felon John Poindexter, which Congress defunded after a public outcry, but aspects of which quietly migrated to other agencies, including the NSA. The administration has also lobbied Internet companies and Congress to require data retention to identify who uploads information, to help garner intelligence or prosecute for illegal content. House Republicans introduced a bill in February that would mandate such retention.