Sometimes I feel like its necessary to burn down a straw man, because so many people seem to be propping him up.

Fans of the mass domestic telephony metadata surveillance program operated by the NSA would have us believe three things simultaneously.

1. The program is perfectly legal.
2. The program was publicly disclosed in the pages of the USA Today in 2006, so everyone knew about it and everyone agreed that it was legal.
3. The program had to be sheltered from judicial review in order to prevent Al Qaeda from finding out about it.

As ridiculous as this narrative is, there seems to be an awful lot of people who believe it.

Lets review the actual history of what happened here.

These programs were started during the early years of the Bush Administration, in a context where a lot of other things were going on, including mass monitoring of domestic telecommunications content (at least at the 2001 Winter Olympic Games), the indefinite detention of U.S. citizens without charges (see Jose Padilla), and the elimination of the restrictions on torture.

Its not as if Congress passed the Patriot Act with the intention of authorizing a program like this. The legal rationale for the mass meta-data surveillance program, at the outset, had nothing to do with Section 215 of the Patriot Act. The legal rationale was that the President, acting under his Article II authority to defend the security of the United States, cannot be constrained the other two branches of the federal government.

Over hundreds of years our society has accumulated a number of constraints upon executive power, such as the Writ of Habeas Corpus, the Fourth Amendment, and Geneva Conventions. We accumulated these constraints because we learned the hard way that if they are not in place, people do bad things. In fact, when the Bush Administration removed these constraints, bad things happened. Those bad things were an inevitable and predictable consequence of the kind of leadership that they engaged in.

After Bush was re-relected, someone leaked word of this mass meta-data surveillance program to the USA Today, and a fight ensued between Dick Cheney, who argued that the President can do whatever he wants under Article II of the Constitution, and Arlen Specter, who tried to negotiate review of these programs by the FISA court. In the end Mr. Specter won.

This is when I did something that over the past year fans of the mass surveillance program have repeatedly ridiculed me for doing - I gave our system the benefit of the doubt.

The IC said that they couldn't submit these programs to open judicial review in order to protect sources and methods, so there had to be a secret court. I trusted that the secret court would not approve aspects of any program that were clearly illegal. As mass meta-data surveillance is clearly illegal, I figured, that probably wasn't what was really going on, and if it was going on, the court would put a stop to it.

According to the fans of the mass surveillance program, at this point I should have known that the program existed, and I should have known that the FISA court would approve it, and if I didn't realize that, I'm a fool. I guess I am.

It was the judges of the FISA court who brought in Section 215 of the Patriot Act in an attempt to find some donkey within the federal code to pin this program on. They rationalized that when the Patriot Act authorized the FBI to collect information that was relevant to an investigation, it really authorized the NSA to collect everything, everywhere, all of the time.

That interpretation is, frankly, ridiculous. If Congress had intended to authorize the NSA or the FBI to collect everything, they would have said so. They did not. There is no way that rationalization will survive open appellant review, and everyone knows it. Even now, the administration is trying to talk the courts out of ruling on that issue because they know its a flying pig, and they are also trying to rationalize that in spite of how ridiculous it sounds, Congress blessed this interpretation when they reauthorized the Patriot Act in 2011, even though nearly 70 Congressmen were kept completely out of the loop.

The reality is that this program was not kept secret during the intervening years between 2006 and Edward Snowden's ultimate disclosure of it in 2013 in order to protect sources and methods. If you are a terrorist, everything that you need to know was disclosed in the USA Today in 2006. Given all of the stuff coming out at that time, you were probably paying attention. Being a terrorist, you could not do what I did - assume that the FISA court would end such a program if it existed. Its your ass on the line, so out of an abundance of caution, you should have started operating as if that program was in place. Furthermore, because data retention is required in Europe, and is certainly going on in the Middle East, you are probably already operating under the assumption that data is being retained anyway. In fact, the DNI has conceded that our telecoms do enough voluntary data retention for business reasons to meet their operational needs.

In other words, there is absolutely no way in which a review of the legality of this program in open court would have benefited terrorists by providing them with information. The reason that it was kept a secret, is because the legal rationale is paper thin. The administration's strategy, now that its out, is to avoid embarrassing court rulings long enough to get Congress to pass the USA Freedom Act, which will moot the issue by ending the data collection.