"What we're trying to do is learn of communications, back and forth, from within the United States to overseas members of al-Qaeda," said Gonzales. "That's what this program is about. This is not about wiretapping everybody. This is about a very concentrated, very limited program focused on gaining information about our enemy."

"Dealing with al-Qaeda is not simply a matter of law enforcement," President Bush said in a press conference on December 19.

"It requires defending the country against an enemy that declared war against the United States.... So, consistent with US law and the Constitution, I authorized the interception of international communications of people with known links to al-Qaeda and related terrorist organizations.... Leaders in the United States Congress have been briefed more than a dozen times on this program.... I've reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for so long as... the nation faces the continuing threat...."

The President's carefully worded statement casts a troubling new light on his insistence that we are fighting a "war on terror" and that he is a "wartime president." Constitutional lawyers have long argued about the limits of presidential or executive power, but all agree that the limits are more elastic in wartime, and it is increasingly evident that the Bush administration has treated this distinction as a barn door. The shock caused by the revelation of the NSA program is not centered on concern for the civil liberties of al-Qaeda terrorists but on the scale, still unknown, of the eavesdropping authorized by the President; on his refusal to use the courts or seek any change in the governing laws; and on his blanket claim that Article Two of the Constitution gives him, as president and commander in chief of the armed forces, both the responsibility for defending the country and "the authority necessary to fulfill it."

Even some Republican leaders find this broad claim troubling. Senator Arlen Specter, chairman of the Senate's Judiciary Committee, has announced that he will hold hearings on the NSA program. "I am skeptical of the attorney general's citation of authority, but I am prepared to listen," he said in December. "You can't have the administration and a select number of members [of Congress, those briefed by the White House] alter the law. It can't be done."

In an interview with Fox News on January 19, Vice President Dick Cheney said such briefings "have occurred at least a dozen times. I presided over most of them." One of those briefings, possibly the first, was held in Vice President Cheney's office on July 17, 2003, four months after the American invasion of Iraq and a year after the NSA program began. Present were Representatives Jane Harman and Porter Goss, now the director of the CIA; and Senators Pat Roberts and John D. Rockefeller. Briefing them were Goss's predecessor at the CIA, George Tenet, and General Hayden of the NSA. There has been no published account of what the members of Congress were told about the nature, rationale, justification, and scale of the program. They were neither permitted to take notes nor to discuss what they heard with any other persons. Far from feeling that the administration had fulfilled its obligations under existing law, Senator Rockefeller handwrote a brief letter to Cheney the same day

"to reiterate my concern regarding the sensitive intelligence issues we discussed today.... Clearly, the activities we discussed raise profound oversight issues.... Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities. As I reflected on the meeting today, and the future we face, John Poindexter's TIA project sprung to mind, exacerbating my concern...."

TIA stands for Total Information Awareness, an intelligence program conceived in the Pentagon's Defense Advanced Research Projects Agency (DARPA) in the year following the attacks of September 11. It was designed to collect and exploit digital records of all kinds from private and public compilers of information -- phone records, bank records, credit card records, police records, medical records, travel records -- basically everything that is recorded about individuals. Running the program was John Poindexter, a former Navy admiral and national security advisor under President Reagan who had been indicted and convicted on seven felony charges during the Iran-contra investigation in the early 1990s, convictions later overturned on appeal. When the New York Times first published a description of TIA in December 2002, the fact that Poindexter was running it proved a fatal debility, and in September 2003 Congress killed funding for the Pentagon's Information Awareness Office.

But Poindexter's retirement and the end of the IAO did not extinguish official hopes for "data-mining," a computer-intensive approach to finding meaning in apparently random patterns. This, in fact, is basically what the NSA has always done -- collect communications from targets of interest and attack them with "tools," which are basically computer programs that seek patterns in apparently random letter and number groups. Data-mining seeks patterns in random actions -- buying, selling, check-writing, getting on planes, and so on -- rather than in the numbers and letters that make up codes. Data-mining is not a way to find out what persons of interest have been up to; it is a way to identify persons of interest among the general population -- persons, in short, who have not been detected doing anything that might convince a judge on the FISA court to issue a warrant for surveillance. Checking out US persons contacted by al-Qaeda would have raised no red flags with FISA judges; the larger and more significant part of the program uncovered by James Risen -- the part which the administration did not want to describe to the FISA court or to members of Congress who could have amended the law; the part, in fact, which the administration still hopes to keep secret and continue -- is the use of data-mining techniques by the NSA to do what Congress refused to allow Poindexter and the Pentagon to do. And that is to generate large numbers of names -- not dozens, thousands -- for the FBI to investigate.

John Poindexter and Total Information Awareness were one bell that rang loudly in the mind of Senator Rockefeller after his briefing in Cheney's office. It is probable that another has rung since -- the testimony of John Bolton during his confirmation hearings last summer to be U.S. ambassador to the UN, when he said that on ten occasions he had formally asked the NSA to identify the "U.S. persons" who had been party to, or perhaps only mentioned in, communications intercepted by the agency and included in reports distributed to others in the government. The fight over the administration's refusal to identify the nineteen persons who aroused Bolton's curiosity in those ten communications was one reason President Bush abandoned efforts to force a Senate vote and instead made an interim appointment of Bolton to the UN post while Congress was in recess. But the argument while it continued jarred loose additional information about the scale of NSA activity -- for example, the State Department's admission that Bolton's colleagues had made over four hundred requests for the identities of U.S. persons in NSA reports; that the NSA had been asked as many as 3,500 times by other agencies to fill in the names of U.S. persons, and that the total number of names provided to other agencies was greater than 10,000.

Who are these people? Some of them were probably included in a database of 1,519 "suspicious incidents" compiled by the Pentagon's Counterintelligence Field Activity, an office charged with defending military bases, according to a report broadcast by NBC a few days before the original New York Times story on the NSA program. On examination, the Pentagon's "suspicious incidents" were simply public protests of the sort watched, photographed, investigated, and wiretapped during the Vietnam War under the program that led to the enactment of FISA twenty-five years ago. At that time the Pentagon's database had ballooned to 18,000 names.

Of the numerous questions facing investigators for the Judiciary Committee the easy ones will concern the legality of the program. It was patently illegal under FISA and the only argument for letting the President get away with ignoring FISA is that he is prepared to make a fight of it. No committee headed by Republicans will do more than chide him on the law. The questions hardest to answer will be what the NSA actually did, and whether it served any useful purpose. A recent New York Times story contradicts the President's claim that the NSA program was "limited... to known al-Qaeda members or affiliates." Citing anonymous FBI officials, the Times claimed that the NSA flooded the bureau with "thousands" of names per month to check out for possible terrorist connections. Far from being a "vital tool," as described by President Bush, the program was a distracting time waster that sent harried FBI agents down an endless series of blind alleys chasing will-o'-the-wisp terrorists who turned out to be schoolteachers. And far from saving "thousands of lives," as claimed by Vice President Dick Cheney in December 2005, the NSA program never led investigators to a genuine terrorist not already under suspicion, nor did it help them to expose any dangerous plots. So why did the administration continue this lumbering effort for three years? Outsiders sometimes find it tempting to dismiss such wheel-spinning as bureaucratic silliness, but I believe that the Judiciary Committee will find, if it is willing to persist, that within the large pointless program there exists a small, sharply focused program that delivers something the White House really wants. This it will never confess willingly.

3. Over the next few months the White House will be fighting a two-front war to preserve its secrets -- one against the Judiciary Committee, as just described, and a second against the Senate Intelligence Committee, which has committed itself to a renewed effort to investigate the administration's drum-beating for war with Iraq by citing scary reports of Saddam Hussein's weapons of mass destruction -- reports that were virtually all wrong, and in some cases were little short of fabricated.

The committee's chairman, Senator Pat Roberts, promised before the 2004 presidential election that "phase two" of its investigation would address the administration's actual use of the intelligence it received, flawed as it was. This was something of a minefield. On their face, many statements by Bush, Cheney, National Security Advisor Condoleezza Rice, and Secretary of Defense Donald Rumsfeld appeared to go well beyond even the exaggerated claims made by the CIA. After Bush won a second term the Republican Roberts not surprisingly dropped "phase two," saying he no longer saw the point. But in November Senator Harry Reid, a Democrat on the Senate Intelligence Committee, revived phase two when he invoked a rarely used parliamentary rule to call for a secret session of the Senate to discuss new evidence suggesting that substantial doubts about WMD intelligence had been suppressed before the war.

Risen found evidence of that, too. Included in his book is a new account of a pre-war CIA program conceived by the agency's assistant director for intelligence collection, Charles Allen, to send Iraqi-Americans to Baghdad to ask scientist-relatives about WMDs. A chief target of the new program was Iraq's effort to develop nuclear weapons, the subject of intense ongoing scrutiny after a son-in-law of Saddam Hussein defected in mid-1995 to Amman, Jordan, where he described WMD programs to UN officials. Sawsan Alhaddad, a woman doctor working and living in Cleveland, was one of about thirty Iraqis dispatched to Baghdad under this program in late summer 2002. When she returned in September she told CIA debriefers in a Virginia hotel room that her brother, an electrical engineer who had joined the Iraqi nuclear program in the early 1980s, had insisted the nuclear weapons program was dead, shut down years earlier. The other Iraqis all said the same thing only months before the US invasion of Iraq in March 2003, but their reports were bottled up in the CIA.

The agency, it turns out, had heard the same thing from many sources, including Hussein's defector son-in-law, General Hussein Kamal, who was fool enough to return to Baghdad, where he was executed. But before leaving, Kamal told the UN that Iraq's WMD program, larger and more advanced than the CIA had believed before the first Gulf War in 1991, had been closed down

"after visits of [UN] inspection teams. You have important role in Iraq with this. You should not underestimate yourself. You are very effective in Iraq.... All chemical weapons were destroyed. I ordered destruction of all chemical weapons. All weapons -- biological, chemical, missile, nuclear were destroyed.... In the nuclear area, there were no weapons. Missile and chemical weapons were real weapons. Our main worry was Iran and they were [intended for use] against them."

Kamal's report, like Sawsan Alhaddad's and many others, were never cited in the October 2002 National Intelligence Estimate used to convince Congress to vote for war. The pattern is clear; evidence of Iraqi WMDs, however flimsy, was treated like scripture while information contradicting that evidence, however clear, was bottled up and never left the building. On three separate occasions, for example, in mid-2001, mid-2002, and January 2003, just before the war, the CIA asked the French for their evaluation of the now-infamous reports that Iraq was trying to buy "yellowcake" uranium ore from Niger. According to the Los Angeles Times of December 11, 2005, the French intelligence chief at the time, Alain Chouet, said that the answer was the same in each instance -- nothing to it.

The French were in a position to know; uranium ore in Niger was all mined by French companies. In mid-2002 the French even told the CIA that the Italian documents reporting the purchase were forgeries, something the CIA did not even attempt to examine on its own for another year; and a few months later, "at about the same time as the State of the Union address" when the President cited the yellowcake as alarming evidence of Saddam Hussein's nuclear ambitions, the Italians also told the Americans that the documents were forgeries. In similar fashion, claims that Iraq was providing al-Qaeda with training in the use of poison gases, cited by Secretary of State Colin Powell at the UN in February 2003, were also contradicted by reports the CIA had but chose to ignore.

In public debate it is customary at this point to ask, in a voice of amazed horror: How could this have happened? Are these intelligence professionals all community college dropouts? Have they forgotten everything they learned in spy school? My own view is that inconvenient evidence that angers policymakers and threatens careers cannot be pushed under the rug by intelligence officers unless they are fully aware of each step in the series -- they know it is evidence, they know it is inconvenient, they know it will anger policymakers, they know their careers will be threatened, and they know they are pushing evidence in the direction of a rug.