A federal judge in the Northern District of California has ruled in favor of a challenge to the Bush Administration's terrorist surveillance program, saying that the Executive branch has no authority to conduct warrantless surveillance except under the conditions set forth by Congress in the 1978 Foreign Intelligence Surveillance Act. The lawsuit, brought by the Al-Haramain Islamic Foundation, a Muslim charity, alleged that the National Security Agency violated the FISA Act when it secretly monitored the foundation's communications under the controversial program. The judge ruled that FISA is the "exclusive" means of conducting such surveillance and agreed with the foundation's complaint.

"Congress appears clearly to have intended to - and did - establish the exclusive means for foreign intelligence activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch's authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities."

The Bush Administration has consistently argued that the president's authority to order the surveillance stems from his inherent power as commander-in-chief of the armed forces. It says that enemy surveillance is a function of war fighting and not subject to congressional or court oversight. The Administration also argues that the terrorist surveillance program is legal since it monitors only communications in which at least one of the parties is outside the United States.

The judge's ruling in the case seems to run afoul of Constitutional law. Constitutional powers cannot be "limited" by statute, only by an amendment to the Constitution. Just as a presidential Executive Order declaring that Congress cannot pass a law raising taxes would be unconstitutional, it is similarly unconstitutional for Congress to pass a law limiting the president's authority to command the armed forces in war time. Supporters of the terrorist surveillance program argue that the war on terrorism trumps Congress's intent in the 1978 FISA Act, while the program's detractors say that FISA is the legitimate governing standard. Whatever the opinions of the opposing sides, this case seems destined to one day be decided by the Supreme Court.