It appears that a Washington Post article that portrays two of the top judges of the Federal Intelligence Surveillance Act Court as standing athwart the Bush administration's "illegal" NSA surveillance program may backfire.

The piece describes how Judges Royce Lamberth and his successor, Colleen Kollar-Kotelly, barred the use of evidence gained by the NSA program to suppor search warrants. This move was not a formal ruling -- so it could not be appealed -- and it also wasn't divulged to the other judges on the FISA court.

Hugh Hewitt had an interesting discussion with law professors John Eastman and Erwin Chemerinsky on his radio show today, and both of his guests agreed that Judge Kollar-Kotelly (and to a lesser extent Lamberth) overstepped their legal authority. For those of you who are unfamiliar with Chemerinsky, he's no conservative. In the linked transcript he states his belief that the NSA surveillance program is illegal. He also recently appeared on TV at the confirmation hearings for Supreme Court Justice Samuel Alito to argue against his nomination to the high court. Having established Chemerinsky's liberal bona fides, here's what he had to say about the Post article vis a vis the FISA judges' actions:

Well, I think it's very troubling. What they've basically done is act instead of the legislature to create a whole new set of rules. And while I think they were acting out of noble motives, I think what it points to is we need the legislature to be doing this, not judges on their own doing this.

Maybe we need to start having mandatory civics refreshers for our federal court judges.