During a public speech last week, the judge who presided over the super-secret Foreign Intelligence Surveillance Court (FISC) from 1995 to 2002 criticized the Bush Administration's warrantless domestic surveillance.

Judge Royce Lamberth made a simple point that bears repeating: "[J]udges understand the war has to be fought, but it can?t be at all costs? We still have to preserve our civil liberties. Judges are the kinds of people you want to entrust that kind of judgment to more than the executive."

In other words, our system of checks and balances doesn't ? and shouldn't ? allow the executive to say "trust us" and get to spy on anyone and everyone at will.

Unfortunately, that's basically what the Administration has done, flouting vigorous judicial and Congressional oversight of the NSA spying program at every turn. Ordinarily before electronic surveillance can be conducted where a party is a U.S. person located within the United States, an intelligence agency like the NSA has to obtain a court order from the FISC. The NSA spying program was deliberately conducted outside of the FISC from its inception, and, though the president said in January that the FISC now supervises the program, the Administration has refused to confirm key details about what they permit.

EFF is skeptical that the new court orders actually satisfy the strict requirements of federal statutes or the Fourth Amendment, considering the broad program of dragnet surveillance alleged in our case against AT&T for its role in the program. Meanwhile, the Administration has tried to squash cases in the traditional court system, including EFF's lawsuit against AT&T, and has refused to answer Congress' questions about the program.

It's good to hear someone like Judge Lamberth push back against Executive power. Let's hope judges sitting on the bench respond similarly to the president's unprecedented power grab.

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