Sindy Farquhar had always viewed the National Security Agency (NSA) with a good amount of skepticism, wondering if the massive spy agency could be trusted to stay within the law.

After she was charged with trespassing for attending an October 2003 protest outside NSA’s Baltimore, Maryland headquarters, she found out she hadn’t been skeptical enough.

At Farquhar’s trial, a prosecutor told the court NSA agents had been taking down license plate numbers, keeping files on the activities of her pacifist group, Pledge of Resistance (POR), and tracking their movements at events. But Farquhar knew the NSA was barred from conducting domestic surveillance by federal law.

“Who is paying for this?” she burst out. “Is this my tax dollars paying so you can spy on us?” As it turned out, her case was just the tip of the iceberg.

The NSA has received a lot of attention lately for an organization that would prefer to remain anonymous. Nicknamed “No Such Agency,” the NSA was created to monitor the electronic communication of foreign nations to obtain potentially helpful military or diplomatic information. On December 15, the New York Times reported that President Bush had ordered the NSA to conduct surveillance of phone calls and emails between U.S. citizens and foreign countries.

Democratic and Republican senators have called the program illegal, many calling for investigative hearings—but none have said the program should be terminated. The Bush administration and several conservative commentators have insisted that the surveillance is necessary to protect the nation from terrorists and that the president’s war powers supercede the law—specifically, the Federal Intelligence Surveillance Act of 1978, or FISA.

Under FISA regulations, government wiretappers can start listening in on suspects at will, as long as they apply for permission within 72 hours of the tap starting. The 11-judge court that authorizes FISA warrants granted 18,761 in the first 22 years of the court’s operation, according to Justice Department reports.

It rejected four. All four rejects took place in 2003 and all four were partially granted after being resubmitted.

Supporters of the NSA policy, however, maintain that the process takes too long.

“We need to be able to get intelligence on an expeditious basis and intercept these before and to disrupt the terror cells before they can kill Americans,” said Sen. John Cornyn (R-TX), according to Federal News Service reports.

FISA was created to prevent the intelligence-gathering abuses of the Nixon administration, when the White House used the nation’s intelligence-gathering services to investigate and sabotage their political enemies. Due to the confidential nature of the NSA program, it is near impossible for the general public to know who exactly is being spied on. The government maintains that it only intercepts communications to or from individuals with suspected Al Qaeda ties—but critics want to know why the government felt the need to avoid even FISA’s cooperative oversight. Perhaps, as Farquhar’s case suggests, the NSA has widened their surveillance mission from foreign terrorists to pacifists and other political opponents.

Cornyn is one of the few senators from either of the major parties to come out firmly and publicly in favor of the program.

“The judges actually rule rather expeditiously once they are given the case, but the application process takes a number of days,” Cornyn said. He also took issue with the Times for running the initial story on the day that Congress was set to vote on terror legislation.

“At least two senators that I heard with my own ears cited this as a reason why they decided to vote to not allow a bipartisan majority to reauthorize the PATRIOT Act,” Cornyn told the Associated Press.

The Times claims it was set to print the story a year ago, but delayed after Bush administration officials asked them not to run it. (The initial story also noted that there was information they declined to publish after government officials told the paper it could be helpful to terrorists.)

Rep. John Conyers, Jr. (D-MI) has said that he will seek to impeach the president. “There can be no doubt that today we are in a constitutional crisis that threatens the system of checks and balances that has preserved our fundamental freedoms for more than 200 years,” he said in a press release. “There is no better illustration of that crisis than the fact that the president is openly violating our nation’s laws by authorizing the NSA to engage in wireless surveillance of U.S. citizens.” Even some Republicans, including Senator Arlen Specter (R-PA), hinted that impeachment hearings were a possibility. Indeed, there are reports that the White House is gearing up for an impeachment fight right now.

However, the talk is at best naïve idealism and disingenuous at worst. With a Republican majority in both houses of Congress—and little evidence that will change dramatically in this year’s elections—any proposed impeachment vote would need broad support among Republican lawmakers that will be flooding the White House communications office with requests for photo-ops with the president from now until November.

Even if the Democrats manage to take back both houses on Election Day they’ll be looking at impeachment like a crooked boxer at a prizefight: they’ll need to put on a good show for the viewers at home, but they’re playing to lose. Most Democrats would vote for the end of U.S. public education before doing anything that could result in a Dick Cheney presidency.

Attorney General Alberto Gonzales has criticized the statements of congressional leaders because, he says, Congress was notified of the warrantless surveillance program when it began in the days following the September 11, 2001 terrorist attacks.

“As far as I’m concerned, we have briefed the Congress,” he told CNN. “They’re aware of the scope of the program.” He added that lawmakers have “an obligation” to speak out if they believe an administration policy is illegal.

When presidents make changes to national intelligence policy, they notify what is known as the Gang of Eight—comprised of the leadership of both houses of Congress and the chairs and ranking members of the House and Senate Intelligence Committees. Membership changes often as lawmakers win or lose elections and committee seats. Also, when congressional notification is limited to the Gang of Eight, members cannot take notes or discuss the information with other lawmakers.

At a January press conference, President Bush defended his decision to avoid the FISA process. “Right after September 11, I knew we were fighting a different kind of war,” he said. “We looked at the possible scenarios, and the people responsible for helping us protect and defend came forth with the current program because it enables us to move faster and quicker. And that’s important.”

The idea of “a different kind of war” is one that the administration has successfully exploited in its efforts to increase executive powers for the war on terror.

“I believe it was Hemingway that said there’s nothing new under the sun,” said John Curr, acting director of the Western Regional Office of the New York Civil Liberties Union (NYCLU). ”Just because they characterize it differently doesn’t make it different.”

The national version of Curr’s organization, the American Civil Liberties Union (ACLU), filed suit against the NSA on January 17 because it believes the program is illegal. A similar suit is being filed by the Center for Constitutional Rights. Plaintiffs range from James Bamford, the former NSA insider and author, to Greenpeace, the international environmental charity, to Christopher Hitchens, a columnist who has written extensively in favor of President Bush’s foreign policy and the need to defeat religious extremism.

“Protecting civil liberties is not a left or right thing—it’s an everybody thing,” said Curr, who worked signals intelligence, or SIG-INT, in the Gulf War. Every intelligence organization needs oversight, he said. “Due process never frees the guilty,” he said. “It only protects the innocent.”

For many legal scholars, however, the issue is not that simple. According to James Gardner, a professor at the University at Buffalo Law School, the president’s intelligence-gathering powers come from two types of authority: inherent constitutional authority or statutory authority—namely, FISA and Title III of the omnibus federal criminal law.

“There’s no question under either that the president has the power to conduct electronic surveillance,” he said. “The question is: What are they doing?” Due to the confidential nature of the program, that my never be made clear to the public.

Gardner believes this controversy is the result of three distinct trends in American politics. First, over the last century the federal government has taken control of more and more areas that used to be the domain of the private sector, from health care to disaster relief.

Secondly, he said, the nature of warfare has changed, so the nature of a president’s wartime powers has had to adapt with it. The executive branch has benefited from this, Gardner said, because it is the only branch that operates with a “streamlined” decision-making structure, as opposed to the drawn out debates that precede a congressional declaration of war.

Lawmakers have been complicit in these two trends, he said. “It’s not as though the president is seizing power from a kicking and screaming Congress.”

The third and politically charged trend is a question of whether today’s conservatives prefer executive power to legislative as a general rule.

“Preferences that favor a particular institution tend to be opportunistic,” Gardner said, and based on party control of that institution. He referred to the debates of the past century over federal versus state powers. When the Republicans had little influence in the federal government, the party’s stated position was a preference for state power. Then, when the GOP took control of Congress in 1994 and the White House in 2000, the emphasis switched to trusting federal institutions.

“They’re in favor of presidential power when the president is Republican,” Gardner said.

When Farquhar, the Pledge of Resistance member, was arrested at the October 2003 protest, her group filed a motion for discovery—the courtroom motion that compels the prosecution to produce all the evidence in their possession so the defense can respond to it. NSA officers released a detailed account of NSA’s surveillance activity during the October event—along with a large file which indicated that POR had been monitored since July. While POR members can’t be sure that they were spied on electronically, most agree that their case clearly shows the NSA’s potential for abuse.

“We consider [the NSA] to be the 500-lb gorilla in our backyard and that it’s our responsibility,” Farquhar said, adding, “Martin Luther King said that you won’t get anywhere without direct action. If you’re angry about something in your neck of the woods, start there.”

Their concerns aren’t new to the pacifist movement. In the Watergate hearings of the 1970’s, Americans learned about the Huston Plan, an effort by the Nixon administration to keep tabs on anti-war protestors and left-wing activists using U.S. intelligence services. Though the plan was never officially instituted, many of its tactics were used, including surveillance of dissidents, infiltration of peace groups, and the use of sabotage and provocateurs at anti-war events.

Comparisons between the War on Terror and the Cold War era are not made lightly. President Bush himself compared the two periods in a speech to West Point graduates in 2002, because “our enemies are totalitarians, holding a creed of power with no place for human dignity. Now, as then, they seek to impose a joyless conformity, to control every life and all life.”

In 1978, at the height of the Cold War, the U.S. sat down and had a national conversation about the merits and dangers of its intelligence services. Lawmakers weighed the values of security and liberty in an effort to solve the problem of keeping Americans safe in a free society. Out of this came FISA, the social contract between America and its spies—procedural safeguards declared obsolete by the Bush Administration today.

The debate has not yet begun on whether the FISA process should be amended, reinstituted, or abandoned altogether in the age of post-9/11 terror. It remains to be seen if those responsible for American safety will look solely at the increasing skill and audacity of extremist terrorists in the past decade or at the larger history of U.S. embarrassment and overreaching in this area—or both—when drafting a new security policy for a changing time.

President Bush has made it clear that he intends to hold to his course and avoid debate on the issue until it is forced upon him. That leaves the nation in two camps: those who believe the policy debate on warrantless surveillance should start now, before its abuse can become an issue, and those who are content to wait, and be watched.