It was brought to public light in December 2005, was the subject of legislation in 2007 and 2008, and was described in a report written by five Inspectors General released last month. On Monday, former Central Intelligence Agency and NSA Director Michael Hayden wrote an op-ed in the New York Times concerning the "value and legality" of the warrantless surveillance program. I have a different perspective.
General Hayden wrote that the surveillance activities were lawful and had "been consistently deemed lawful by the Justice Department." This is misleading, because until Congress passed the Protect America Act in 2007, these surveillance activities (acknowledged by President Bush in 2005) were conducted outside of the governing law, the Foreign Intelligence Surveillance Act of 1978 (FISA). That was done despite a provision in law that specifically stated FISA was to be the "exclusive means" by which electronic surveillance could be done for foreign intelligence purposes.