AJ Strata has been carefully watching the NSA "scandal" unravel and has some interesting news which confirms his long held belief that this is an important program and not unlawful. Most importantly, he disputes the often—heard argument that FISA was fine as it was because the government could easily get a warrant:

General Hayden spoke recently and provided information that is critical to the context of what I wrote below. What Hayden confirmed is all NSA activities were extensions of 1981 executive orders which confirms the Bush administration did not re—direct NSA's surveillance, but directed it to send leads on US persons to the FBI for follow up. He also clearly points out we knew Atta and other 9—11 terrorists were in the US — but could not pass this on because they were 'protected' — whatever that means. In my mind that means the FISA court would refuse to entertain surveillance warrants because the leads originated with the NSA or DIA.

On January 23rd, General Michael Hayden spoke to the National Press Club in Washington, D.C. [....]

Hayden informed us that his office has been operating under an executive order (EO#12333 from 1981) that gave the NSA the tools it is currently using — meaning the NSA wasn't suddenly unleashed to go marauding every American's privacy by George W. Bush. [....]

'I [Hayden] testified in open session to the House Intel Committee in April of the year 2000. At the time, I created some looks of disbelief when I said that if Osama bin Laden crossed the bridge from Niagara Falls, Ontario to Niagara Falls, New York, there were provisions of U.S. law that would kick in, offer him protections and affect how NSA could now cover him.' [....]

He admits that we knew that Mohamed Atta and his crew were in the US. But he says that 'we did not know anything more' because prior to 9/11 'Mohamed Atta and his fellow 18 hijackers would have been presumed to have been protected persons, U.S. persons, by NSA.'

As I mentioned before,  the protected person status meant throwing away the lead and a suspension of monitoring. Hayden again (added for clarity):

NSA cannot — under the FISA statute, NSA cannot put someone on coverage and go ahead and play for 72 hours while it gets a note saying it was okay. All right?

Clarice Feldman   2 14 06