Capitalism - and any other system - has to have bogeymen and terrorism as a fear, the thinking being that anything outside the system is a fate worse than death and therefore the system, in this case capitalism as we know it is better than the alternatives. We all know there aren't any 'al-qaeda' terrorists really, it certainly is not necessary to monitor everyone's phone just because of that.
Going through the courts to discern whether these Stasi style systems were/are constitutional or not is noble and good on the EFF for doing these things. However we have not acknowledged why these things had to happen, we still go along with the 'al-qaeda terrorist fear' meme.
The point of surveillance and letting everyone know that they are under surveillance is to stop people communicating in a way tantamount to dissent. The Catholic Church and the Stasi had these things in place, not to root out protestants or Western spies, it was always to keep people in line with their system of rule. When it comes to our own Western surveillance we somehow believe the authorities that it is to catch the terrorists, a noble cause that nobody could possibly argue with. Yet really it is to keep people in line and not dissenting.
In the Bush years the powers-that-be were genuinely concerned they might have a Berlin Wall moment where people just see through the lies and decide not to stand shoulder to shoulder waving flags.
Their fears were seriously unfounded though, people really were deeply wedded to the system to the point of being indoctrinated and brainwashed. No matter how feeble the phantom enemy was people went along with it, it sold newspapers and meant people didn't even dream of getting organised in some revolutionary way. Occupy Wall Street was about it, a very damp squib.
Whether the details of the mass surveillance infrastructure were technically constitutional or not does not answer the bigger question regarding what the Bush government were so scared of.