Carol D. Leonnig and Dafna Linzer write in today’s Washington Post that a judge on the FISA court has resigned.

A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush’s secret authorization of a domestic spying program, according to two sources.

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court’s work.

According to colleagues, Robertson was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants.

“They just don’t know if the product of wiretaps were used for FISA warrants — to kind of cleanse the information,” said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. “What I’ve heard some of the judges say is they feel they’ve participated in a Potemkin court.”

Meanwhile, James Risen and Eric Lichtblau of the New York Times report that the NSA program did too include surveillance of purely domestic communications.

A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.

The officials say the National Security Agency’s interception of a small number of communications between people within the United States was apparently accidental, and was caused by technical glitches at the National Security Agency in determining whether a communication was in fact “international.”

Telecommunications experts say the issue points up troubling logistical questions about the program. At a time when communications networks are increasingly globalized, it is sometimes difficult even for the N.S.A. to determine whether someone is inside or outside the United States when making a cellphone call or sending an e-mail message. As a result, people that the security agency may think are outside the United States are actually on American soil.

The blogosphere is, of course, seeing two different realities. The righties have made up their minds that presidents Clinton and Carter also ordered warrantless searches, which (1) isn’t true, and (2) wouldn’t make it right, even if it were true. But you know that won’t make any difference to cowards. There are terrorists out there! Quick, throw the Bill of Rights overboard!

[Update: See more debunking of “warrantless” searches by Clinton and Carter by Georgia10 at Kos.]

Just call them cowards. That’s what they are. I was in lower Manhattan on 9/11 and saw the worst that terrorism can do, and I am not crawling around under rocks screaming that we must compromise everything America stands for to keep us safe. And I’ve never considered myself especially brave; just put me in a dentist’s chair, and I’ll confess to anything. But as I wrote yesterday, righties are so terrified of the jihadist boogeymen they’ll make excuses for anything Big Brother does, in the opinion — unjustified, I say — that Big Brother is keeping them safe. And they call themselves patriots. It’s too pathetic.

And the White House has yet to demonstrate that taking the path to tyranny has made us any safer. For example, Josh Meyer of the Los Angeles Times writes that at least one of Bush’s arguments is bogus.

In confirming the existence of a top-secret domestic spying program, President Bush offered one case as proof that authorities desperately needed the eavesdropping ability in order to plug a hole in the counter-terrorism firewall that had allowed the Sept. 11 plot to go undetected.

In his radio address Saturday, Bush said two of the hijackers who helped fly a jet into the Pentagon — Nawaf Alhazmi and Khalid Almihdhar — had communicated with suspected Al Qaeda members overseas while they were living in the U.S.

“But we didn’t know they were here until it was too late,” Bush said. “The authorization I gave the National Security Agency after Sept. 11 helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities.”

But some current and former high-ranking U.S. counter-terrorism officials say that the still-classified details of the case undermine the president’s rationale for the recently disclosed domestic spying program.

Indeed, a 2002 inquiry into the case by the House and Senate intelligence committees blamed interagency communication breakdowns — not shortcomings of the Foreign Intelligence Surveillance Act or any other intelligence-gathering guidelines.

See also “Bush’s Bogus Analogy” by Daniel Benjamin in Slate.

And of course it didn’t help that the President and National Security Adviser were told that “Bin Laden determined to strike in US” and made no attempt to shake trees, rattle cages or otherwise follow up.

But I digress.

Douglas Jehl writes in today’s New York Times that

The limited oral briefings provided by the White House to a handful of lawmakers about the domestic eavesdropping program may not have fulfilled a legal requirement under the National Security Act that calls for such reports to be in written form, Congressional officials from both parties said on Tuesday.

The White House has refused to describe the timing and scope of the briefings, except to say that there were more than a dozen. But among the small group of current and former Congressional leaders who have attended the high-level gatherings conducted by Vice President Dick Cheney at the White House, several have described them as sessions in which aides were barred and note-taking was prohibited.

Dick is warning senators that investigating the NSA program could be bad for their careers. Ron Hutcheson and James Kuhnhenn write for Knight Ridder,

Senators of both parties on Tuesday demanded a congressional investigation into President Bush’s domestic-surveillance program, even as Vice President Dick Cheney warned that the president’s critics could face political repercussions. …

… Cheney forcefully defended the previously secret spying program – disclosed last Friday by The New York Times – and said that Bush’s critics could pay a political price.

But at the moment the question is not whether there will be an investigation — there will be an investigation — but how the investigation will be conducted.

Five members of the Senate Intelligence Committee – two Republicans and three Democrats – called for a joint investigation by their panel and the Senate’s Judiciary Committee, saying revelations that Bush authorized spying on U.S. residents without court approval “require immediate inquiry and action by the Senate.”

Senate Majority Leader Bill Frist, R-Tenn., said he was discussing the possibility of hearings with various committee chairmen, but he didn’t pledge to hold any. Democratic leader Harry Reid of Nevada said he preferred for each committee to conduct independent inquiries.

David Ignatius at WaPo is encouraged by a revolt of the professionals.

The national security structure that the Bush administration created after Sept. 11, 2001, began to crumble this month because of a bipartisan revolt on Capitol Hill. Newly emboldened legislators forced the administration to accept new rules for the interrogation of prisoners, delayed renewal of the Patriot Act and demanded an investigation of warrantless wiretapping by the National Security Agency.

President Bush has bristled at these challenges to his authority over what has amounted to an undeclared national state of emergency. But the intelligence professionals who have daily responsibility for waging the war against terrorism don’t seem particularly surprised or unhappy to see the emergency structure in trouble. They want clear rules and public support that will allow them to do their jobs effectively over the long haul, without getting second-guessed or jerked around by politicians. Basically, they don’t want to be left holding the bag — which this nation has too often done with its professional military and intelligence officers.

The President needs to do what he often talks about, which is provide strong leadership, says Ignatius. The way Bush works to get his way isn’t leadership; it’s bullying. And when bullying doesn’t work, he lies, and bypasses Congress and the courts and the Constitution and anyone else he doesn’t want to bother about actually leading. Real leadership is haaaarrd work, you know.

See also Bruce Ackerman,” The Secrets They Keep Safe” in Slate.