NSA Expanded Surveillance On Its Own -- But Connections to Later Program Doubtful:
The New York Times is reporting that in the days following 9/11/01, the NSA stepped up its surveillance programs on its own without Presidential action:
  The National Security Agency acted on its own authority, without a formal directive from President Bush, to expand its domestic surveillance operations in the weeks after the Sept. 11 attacks, according to declassified documents released Tuesday.
  The N.S.A. operation prompted questions from a leading Democrat, Representative Nancy Pelosi of California, who said in an Oct. 11, 2001, letter to a top intelligence official that she was concerned about the agency's legal authority to expand its domestic operations, the documents showed. . . .
  The letter from Ms. Pelosi . . . suggested that the security agency, whose mission is to eavesdrop on foreign communications, moved immediately after the Sept. 11 attacks to identify terror suspects at home by loosening restrictions on domestic eavesdropping.
  The obvious question is, was this expansion directly related to the Bush Administration's warrantless surveillance program? I doubt it. It seems quite unlikely to me that the NSA would on its own accord engage in monitoring that needed the AUMF or rather novel Article II theories to justify it. Presumably the change was just some kind of expansion of monitoring or change in practice that the NSA thought fit within the bounds of FISA and the existing Executive Order. That's what this bit from the story suggests:
  Bush administration officials said on Tuesday that General Hayden, now the country's No. 2 intelligence official, had acted on the authority previously granted to the N.S.A., relying on an intelligence directive known as Executive Order 12333, issued by President Ronald Reagan in 1981. That order set guidelines for the collection of intelligence, including by the N.S.A.
  "He had authority under E.O. 12333 that had been given to him, and he briefed Congress on what he did under those authorities," said Judith A. Emmel, a spokeswoman for the Office of the Director of National Intelligence. "Beyond that, we can't get into details of what was done."
  We can't know for sure, but it seems like there probably isn't much of a story here. One would certainly hope that the NSA changed its surveillance practices somewhat in the days following 9/11. So long as the changes fit readily within the boundaries of preexisting law -- which seems to have been the case, as far as I can tell -- I don't see a problem here.

  Thanks to Eric Freedman for the link.