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The New York Times Eric Lichtblau is reporting today that the Foreign Intelligence Surveillance Court of Review is going to rule that the Protect American Act is constitutional.

WASHINGTON — A federal intelligence court, in a rare public opinion, is expected to issue a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a court order, even when Americans’ private communications may be involved, according to a person with knowledge of the opinion.

But, as BTD point out at TalkLeft, it's actually unclear from Lichtblau's reporting that that lede is correct--is the court validating executive authority, or limited to ruling on the Protect America Act?

...In validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has constitutional authority to act without specific court approval in ordering national security eavesdropping.

The appeals court is expected to uphold a secret ruling issued last year by the intelligence court that it oversees, known as the Foreign Intelligence Surveillance, or FISA, court. In that initial opinion, the secret court found that Congress had acted within its authority in August of 2007 when it passed a hotly debated law known as the Protect America Act, which gave the executive branch broad power to eavesdrop on international communications, according to the person familiar with the ruling....

The opinion is not expected to directly rule on the legality of the once-secret operation authorized by President Bush between October 2001 and early 2007, which allowed the National Security Agency to eavesdrop on the international communications of Americans suspected of ties to terrorists. The disclosure of the program’s existence in The New York Times in December 2005 set off a national debate on wiretapping, privacy and the limits of presidential power. Critics charged that Mr. Bush had violated a 1978 law requiring that the government obtain a court order to listen in on Americans’ communications. [emphasis mine]

If the opinion is not expected to directly rule on the legality of the Bush warrantless wiretapping program, then Lichtblau's lede is overstated. From what he's reported here, there's no indication the the court is ruling on anything more broadly than whether Congress's passing the Protect America Act was constitutional.

Whether this decision will have any impact on the cases pending before Judge Vaughn Walker in federal district court in San Francisco remains to be seen. Walker has two cases before him, the EFF's suit to rule the FISAAA unconstitutional, and the Al-Haramain suit against the Bush administration alleging that it was illegally spied upon. The second case actually goes directly to executive power. Given Walker's skepticism so far toward the Bush administration's arguments,  the Foreign Intelligence Surveillance Court of Review decision, if it doesn't rule directly on executive power, might not have much of an impact. That, obviously, remains to be seen.

Update: Per burrow owl in the comments, the somewhat redacted decision was just made available here [pdf].

Update II: We're apparently hammering the court's Web site. It's available at the main page with a link in the top middle of the page.

Originally posted to Daily Kos on Thu Jan 15, 2009 at 09:25 AM PST.

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