Newsweek reports that some four or five months ago, a FISA judge held illegal parts of the revised warrantless wiretapping program. Revised, in that this was the program after the Administration decided to present it to the FISA court. Newsweek:

The order by a judge on the top-secret Foreign Intelligence Surveillance Act court has never been publicly acknowledged by administration officials—and the details of it (including the identity of the judge who wrote it) remain highly classified. But the judge, in an order several months ago, apparently concluded that the administration had overstepped its legal authorities in conducting warrantless eavesdropping even under the scaled-back surveillance program that the White House first agreed to permit the FISA court to review earlier this year, said one lawyer who has been briefed on the order but who asked not to be publicly identified because of its sensitivity.

The first public reference to the order came obliquely this week from House Minority Leader John Boehner—one of a number of senior Republicans who have been leading the White House-backed campaign to persuade Congress to rush through an expanded eavesdropping measure before it leaves for August recess at the end of this week.

So, this FISA court ruling supposedly explains the “emergency.”

But instead of answering questions, an “oblique reference” to a secret opinion about a secret program written by a nameless judge only raises more questions. Were there other aspects of the surveillance program (remember – apparently cleaned-up in the hopes of passing FISA court muster) that the FISA judge determined violated the law? The only information leaked to the press is that which selectively bolsters the administration’s sudden insistence on a specific revision of the FISA statutes. Unfortunately, oblique references and self-serving leaks may prove sufficient in moving Congress toward unquestioningly revising the FISA statutes.

And if Congress’s fear of not looking “tough on terrorism” is not enough to move them, the Capitol’s subjection to one of Michael Chertoff’s “gut feelings” may better drive the administration’s point home.

More at WaPo:

Since March, the administration has quickly tried to build a case for the legislation, while concealing from the public and many in Congress a key event that appears to have driven the effort.

“It clearly shows that Congress has been playing with half a deck,” said Jim Dempsey, policy director for the Center for Democracy and Technology. “The administration is asking lawmakers to vote on a very important piece of legislation based upon selective declassification of intelligence.”