First: FISA judges said (reported on March 29th):

A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).

The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president’s constitutional authority to spy on suspected international agents under executive order.

“If a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now,” said Judge Allan Kornblum, magistrate judge of the U.S. District Court for the Northern District of Florida and an author of the 1978 FISA Act. “I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute.”

Second, the Supreme Court this morning refused to hear a case from a man held as an enemy combatant:

WASHINGTON (AP) — A divided Supreme Court on Monday rejected an appeal from a man held until recently as an enemy combatant without traditional legal rights, in effect sidestepping a challenge to Bush administration wartime detention powers.

Stevens and two other court members, Chief Justice John Roberts and Justice Anthony M. Kennedy, explained their Monday votes not to deal with Padilla’s case.
Although Padilla’s claims “raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts, (the case) also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical,” Kennedy wrote for the three.

This, of course, does not stop the Dems from attempting to “censure” President Bush for his tapping decision as, I am wont to frequently say, “never let the facts, proportion and reality get in the way of a good, screwed up decision.”

BZ