I've been thinking along similar lines. The puzzling thing about this has always been the question of why Bush didn't want to go through FISA when he maintains that they'd have routinely approved warrants under his program. Why circumvent the legal safeguards?

I think you're right that there's more than one program, and I suspect that there's at least one that by its nature FISA couldn't have approved: "Driftnet" interception of massive amounts of communication, through which the NSA supercomputers sift looking for interesting info. There's no warrant to approve when you're eavesdropping on a wholesale basis.

Several things lead to this conclusion. One is the basic nature of the NSA, to the extent that we know of it. It's said to be capable of taking in huge volumes of signals intercepted from all over the world, and running them through automated analysis algorithms that look for keywords and patterns. The NSA is a driftnet. If you want targeted surveillance of Americans, you go to the FBI. The nature of the tool that Bush used suggests the nature of the program: Wholesale surveillance, not the surgical retail surveillance Bush maintains.

Another problem I have with the Bush story is its internal inconsistency. Bush pledges that his NSA only listens to calls between Americans and al Qaeda. Right. How do they know ahead of time which calls fit the criteria? There's more than a whiff of circularity about it: Getting that knowledge in the first place requires eavesdropping on a massive scale.

BTW, that story is inherently false, unless you assume that we pay attention only to al Qaeda and ignore all other terrorist organizations. It's inconceivable that they're not intercepting more calls than that, even taking the story at face value. Minor point, I know, but lies unravel when you follow the loose threads like that. Where you can find one lie, you're sure to find more.

Gonzelez was noticeably cagey in his testimony, overly precise and way too careful in his choice of words. It's possible, too, he overreached when he claimed that Article II of the Constitution provides all the authority Bush needs. People need to read it--Not only is there nothing about surveillance there, but the only possible hook for his claim is assignment of the duties of Commander-in-Chief to the President. Yet again, everything comes back to the "war on terror" as the universal hall pass to excuse everything. That one's worn so thin you can see through it like glass.