> And Congress has not passed laws to the contrary.
Congress did, in fact, pass the original Foreign Intelligence Surveillance Act of 1978 "to the contrary", expressly prohibiting (and criminalizing) many of the types of searches (both physical and electronic) for the stated purposes of "National Security" that had been done prior to the Act.
Of course, the executive was successful in getting Congress to remove many of the restrictions in FISA in the FISA Amendments Act of 2008, including retroactive immunity for private firms that had cooperated in the executive's violations of FISA, but then, if the scope of the surveillance in violation of FISA was as broad as current surveillance appears to be, it may well have been the source of the leverage to get the change through Congress.
Sorry, by "Congress" I wasn't referring to the version in place 35 years ago in the post-Watergate Era.
As you note, the Congress of today has rolled back FISA and added new, more pliant laws (e.g., Patriot Act).
We are in a different era where all three branches are gladly pushing the reasonable clause far beyond the intended use. That's the result and it is Constitutional because all three branches say so.
> Sorry, by "Congress" I wasn't referring to the version in place 35 years ago in the post-Watergate Era.
I am not sue that the "version" of Congress has changed as much as the attitude of the people toward the government. While abstract anti-government rhetoric is perhaps even more common now than in the post-Watergate Era, specifically directed outrage at particular abuses like the (far more pervasive today than in the Watergate Era) use of national security resources for surveillance of the population (and not just foreign communication) is far more muted.
Congress did, in fact, pass the original Foreign Intelligence Surveillance Act of 1978 "to the contrary", expressly prohibiting (and criminalizing) many of the types of searches (both physical and electronic) for the stated purposes of "National Security" that had been done prior to the Act.
Of course, the executive was successful in getting Congress to remove many of the restrictions in FISA in the FISA Amendments Act of 2008, including retroactive immunity for private firms that had cooperated in the executive's violations of FISA, but then, if the scope of the surveillance in violation of FISA was as broad as current surveillance appears to be, it may well have been the source of the leverage to get the change through Congress.