And you wonder why Andy McCarthy thinks it’s time to say goodnight to FISA. In the meantime it appears that FISA activist Judge Colleen Kollar-Kotelly isn’t through playing President:

“WASHINGTON - The government must answer a watchdog group’s demands to release records about the nation’s classified terrorist spying program, the chief judge of a secretive national security court has ruled.

The American Civil Liberties Union, which announced the order Friday, said it was the first time the Foreign Intelligence Surveillance Court had responded to a request filed by the public.

In her 2-page order, dated Aug. 16, Presiding Judge Colleen Kollar-Kotelly called the ACLU’s demand “an unprecedented request that warrants further briefing…

“It remains unclear whether the court records will ever be unsealed. Kollar-Kotelly ordered the Justice Department to respond to the ACLU’s request by Aug. 31. If Justice officials want to seal parts of their response, the government must explain why to the court, which will have the final say.

In turn, the ACLU must answer the government’s response by Sept. 14.”

You’ll remember that Kollar-Kotelly prompted the WSJ in a 2006 editorial to ask, “Who elected her to run national security? “. Here’s a snippet:

“We’d like to thank the Washington Post for publishing a story yesterday that so quickly proved our editorial point of the same day about the folly of putting judges in control of national security decisions. That’s what we call service.

The front-page story reported that on rare occasion the Bush Administration has used information from the NSA’s warrantless foreign-linked wiretaps to seek domestic wiretapping authority from the Foreign Intelligence Surveillance Court. This was said to have upset chief FISA judge Colleen Kollar-Kotelly, and the tenor of the story is that this is one more example of how the warrantless wiretaps are an abuse of power. But the better question is, Who elected Ms. Kollar-Kotelly?

The story’s real news is that Judge Kollar-Kotelly, and her predecessor, Judge Royce Lamberth, took it upon themselves to erect a new “wall” concerning how intelligence is to be used to protect America. They decided that pertinent information gleaned from a warrantless wiretap should never be used later to justify a domestic warrant. But why not? If a tip gathered from an email from Pakistan leads to suspicion about an American-based contact, what’s wrong with using that news to get a legal warrant to track that suspect in the U.S.? It might even prevent a domestic attack.

In any event, why is an unelected judge such as Ms. Kollar-Kotelly making these decisions? Under the Constitution, those calls ought to be made by the President, who swears to defend the U.S. and can be held accountable by the voters if he fails. Under the current FISA court process, Judge Kollar-Kotelly answers essentially to no one.”

Kollar-Kottelly is a Clinton appointee so it’s no surprise that she would be of the mindset that the judiciary would have powers over the executive the excution of war policy.

The DOJ should appeal this ruling and if so it will be overturned as it’s obvious a matter of national security. Yet I believe that McCarthy is absolutely right that now more than ever we should end the reign of these elite judges abolish FISA.

UPDATE: Via the Washington Post:

“David B. Rivkin Jr., a partner at Baker Hostetler and a Justice Department official in the Reagan administration, said he is skeptical that the ACLU can pry loose the orders. Rivkin also argued that it is unclear whether the secret court, which meets inside the Justice Department building, has the authority to release such documents over objections from the executive branch.

“The order is unusual, and the request is also unusual,” Rivkin said. “But I would be amazed if that request were granted in the end.”

The only previous ruling to be made public from the secret court came in 2002, when the panel rejected new surveillance guidelines proposed by the Justice Department. A special appeals court overturned the ruling later that year.”

Again, the Judicial Branch does not have authority over the Executive in the execution of war policy or implementation of National Security, I agree that it’s highly unlikely the ACLU wins this one.