The Foreign Intelligence Surveillance Appeals Court released an unclassified version of an August 2008 ruling that seems to validate President George W. Bush's claim that the government can act without court orders in gathering foreign intelligence.
The Bush administration came under heated criticism three years ago when a National Security Agency's program for warrantless eavesdropping was revealed. In 2007, Congress passed the Protect America Act, which authorized the executive branch to eavesdrop on international communication without court orders. The ruling released Thursday dealt with that law.
An unnamed telecommunications company challenged the constitutionality of the Protect America Act law last year, but the FISA court ruled that Congress acted within its authority when it passed the law.
While the court released the once-secret opinion, Attorney General-designate Eric Holder was answering questions about the legality of the nation's controversial warrantless surveillance programs during .
"Holder, for his part, pledged to do a 'damage assessment' review of this policy and practice on behalf of the Justice Department. The juxtaposition between the two simultaneous events - like two ships crossing in the night - was striking," writes CBS News chief legal analyst Andrew Cohen.
During his time in the Senate, President-elect Barack Obama endorsed the latest version of the current administration's surveillance policy. That means that Holder now must gingerly evaluate how the warrantless program came about, whether it is working to its fullest extent, whether and to what extent it reaches too far in infringing constitutional privacy rights, and what can be done if it does.
On Thursday morning, Holder was clear in telling the Senate Judiciary Committee that he believes the president has power within Article II of the Constitution (like the power to eavesdrop) that the Congress may not take away, writes Cohen.