THere were a lot of 'if' statements in your post :) The problem is:
(1) We do not know what the NSA is doing (2) We cannot trust what they say they are doing, because they are perfectly willing to lie about it.
(1) We do not know what the NSA is doing (2) We cannot trust what they say they are doing, because they are perfectly willing to lie about it.
This is where Congress is supposed to kick in (and Congress does spend a lot of time creating legislation when the judicial system doesn't have the tools to do what's "right"), either through FOIA-style legislation or legislating a restructuring of the NSA or whatever.
And this sort of "well we can't trust the gov't to follow any of the rules anyways" discussion is pointless, counterproductive, and false. Courts have countlessly told the "government" (which is really just the executive) to do things it didn't want to do. The system is working, and this is part of the process.
It is true that in some cases the courts do, in fact, tell the government they can or cannot do this or that. But I think the problem being referred to is when the "government" does things within a veil of secrecy so that the courts aren't even aware of the problem. Never mind the fact that the government creates a "court" to validate their procedures that itself is kept secret as part of the overall secrecy. In those cases I wouldn't say the discussion is pointless, counterproductive, and false.