[U.S. District Judge James] Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.The resignation seems to speak loudly, but what does it say? The resignation letter itself gives no reason. An anonymous source offers some context. The judge may see the process that he participates in as tainted and feel that he can therefore no longer be part of it. The judge may simply object to the procedure and feel that the resignation is an effective way to express that objection. That objection may be political opposition to the President, purely legal opinion, or some mix of the two. To the extent that it is legal opinion, it may not be an opinion that most judges, handling a fully briefed and argued case, would agree with. The one judge we see making a statement to the press without asking for anonymity says that it's too soon to have figured out such a complicated legal question. That sounds about right to me.
"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."
Robertson is considered a liberal judge who has often ruled against the Bush administration's assertions of broad powers in the terrorism fight, most notably in Hamdan v. Rumsfeld . Robertson held in that case that the Pentagon's military commissions for prosecuting terrorism suspects at Guantanamo Bay, Cuba, were illegal and stacked against the detainees.
Some FISA judges said they were saddened by the news of Robertson's resignation and want to hear more about the president's program.
"I guess that's a decision he's made and I respect him," said Judge George P. Kazen, another FISA judge. "But it's just too quick for me to say I've got it all figured out."
December 21, 2005
"Some of the judges say is they feel they've participated in a Potemkin court."
A federal judge has resigned from his position on the Foreign Intelligence Surveillance Court:
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This fight against terrorism has caused such polarizing positioning that you have to assume the judge could not separate his partisan feelings.
One side thinks that the otherside is insane and ready to surrender to the terrorists. The other side forgot about terrorists long ago and believes that Bush himself is the enemy.
Its crazy.
The Rockafeller stuff is a perfect example of what is going on. Apparently Rockafeller doesn't even have the guts to admit now that he supported the program. He doesn't want to be the next Lierberman and be banged to death with Mao's little red book.
Good riddance? If you quit like this, does this mean you don't get a pension?
Or is this just a highly political way of retiring?
While I did vote for Bush, I have to agree with The Pooka's take on the (mis)use of the term "activist judge".
One thing remains unclear to me. I'm assuming that Judge Robertson's resignation to the FISA Court is not the same as resigning from the federeal bench altogether. Am I correct?
And in any event, I find it hard to believe that if this is a political statement that it is a baseless statement. Lots of people of every mainline political stripe in America have problems with this sort of use of government power. Judge Robertson may have decided that he can no longer accomplish anything on the FISA Court, but perhaps can accomplish something positive by resigning.
Jeff: The man remains a federal district judge with life tenure. He's only resigned from additional duties he had as a judge with a limited term on the FISA court. It's very hard to see this fact in the article!
I think that the fact that he remains a federal judge with life tenure makes this say much less than if he were to resign from the bench entirely. The "political" impact of the statement seems, to me, seriously lessened by the notion that it's much easier to resign from this spot knowing you still have your high-paying life-tenure job to fall back on.
I think it's also interesting that reports are that he's a more liberal judge who has ruled against the administration in prior cases (outside of the FISC); if that's true, isn't the net result of his "resignation" likely to be that he'll be replaced on this court with a more conservative judge who will rule in the administration's favor even more (not that there's much room for ruling pro-administration more in the FISC anyway, but still)? Again, the "political" impact of a couple days headlines seems to be further outweighed by the likely ultimate effects.
Does anyone seriously believe that if the Military siezes a computer from Al Qaeda in afghanistan and that computer has the phone number of An Abdul Muhammad in it who is living in San Diego on a student visa, does anyone seriously beleive that not getting a warrant to listen to the next phone call made by Abdul back to his buddy in Afghanistan reduces our civil liberties?
How absurd.
There has been a lot of talk aout getting a warrant after the fact. However knowing that you have to get a warrant after the fact will reduce the effectiveness of the program. It will put more caution into those who are charged with donig the evesdropping. Do we want people to be cautious. If we find a computer with Abduls name on it do we want hesitation for fear that the evesdropping may not be granted (by the liberal judge who just resigned).
Consider the Massoui case in Minnesota where a warrant wasn't even sought because the FBI lawyers waid there wasn't enough probable cause to look through Massoui's computer. How ridiculous. Do we want the people at NSA making those judgments about warrants after the fact for Al Qaeda connected phone calls. What if someone says, "gee we may not have enough probable cause to listen to this phone call because we are only 50% sure the captured computer was owned by Al Qaeda....." Do we really want this kind of hesitation when it comes to preventing the next 9-11?
I think not.
I think it means that we are not sure at all whether or not we are at war and whether or not we have a right to fight Islamism. The NYT and perhaps this judge would probably object to my view that we are, and we do.
In WWII we executed some German spies who washed ashore after a short military tribunal; today we release "detainees" captured in battle because the world pities them. It will be interesting in the coming decades to see if the world can survive its own moralism. Interesting, but painful.
Fascists and traitors - the whole lot.
The resignation of Judge Robertson from the FISA court strikes me as a very small story indeed. Nothing requires him to serve on the FISA court, nor does anything require him to give up his personal political views about the advisability of the President's authorizing the secret wiretapping of international calls to or from known operatives associated with Al Queda. It's a free country, and even federal judges are entitled to act on their views in deciding whether to accept additional judicial duties beyond those of the court to which they were appointed under Article III.
The suggestion that the FISA court was a "Potemkin court" seems very farfetched. How was it a false facade intended to hide the truth? There were thousands of wiretaps authorized by the FISA court over the years. Those wiretaps are typically used to gather evidence for eventual use in federal criminal investigations and prosecutions. Public statements by prior Presidents (see below) as well as President Bush, made it abundantly clear that the executive branch has consistently taken the position, during both Dem and Rep administrations, that the President had inherent authority to authorize wiretaps of internatinoal communications for foreign intelligence and defense purposes. So what was supposedly been hidden, and how was the FISA court a false front?
By the same token, evidence gathered without a wiretap for foreign intelligence and defense purposes has not been used (at least as far as I can tell from the news accounts) in federal criminal prosecutions. To the extent the concern was that the court's process was "tainted" -- i.e., info obtained from warrantless evesdropping may have been used to support applications made to the FISA court -- the reports today suggest that the chief judge of the FISA court (who had been briefed by the Bush Administration on the secret NSA program) sought and received written confirmation that there had been no such use of info obtained from the NSA program.
Since Judge Robertson declined to specify his reasons, why did this story end up above the fold on page 1 of the Washington Post? And why are the NY Times and the Washington Post giving no signficant coverage to the fact that there is nothing new here in the assertion of Presidential authority? Both on the web and in other publications, for example, one can read the statements of John Schmidt (who served under President Clinton from 1994 to 1997 as the associate attorney general of the United States), to the effect that the Clinton Administration took the same position as to the the President's power to authorize warrantless searches and wiretaps for foreign intelligence purposes. Similarly, the testimony by Jaime Gorelick to Congress, when she served as Deputy AG under Clinton, contained the same assertion of Presidential power. And, in terms of expressions of judicial views about the NSA program, today also brings a column by Judge Richard Posner -- no irrational pro-Administration kook, to say the least -- expressing the view that the NSA program was far from a threat to civil liberties, and to the contrary, probably did not go far enough in protecting legitimate foreign intelligence and defense interests.
So what is new here, in terms of the assertion of Presidential power, that supports the breathless coverage in the NY Times, let alone the non-story about Judge Robertson? While the Post may be trying to play "catch up," doesn't the fact that the coverage is so false to the relevant history here (none of which gets any significant mention in their coverage), suggset that there may be an agenda in play here? (PS - on the latter issue, I have a pretty good idea, and so do most of the readers of your blog, where the truth lies).
Sloanasaurus:
1. What Rockafeller did was very smart. If he hadn't, then people would be saying something like, 'he was told about the program two years ago, how can he oppose it now?' And don't deny they would-- I've been hearing exactly that from Republicans about Pelosi and other Democrats who were told about it two years ago. What he did made it clear that if and when it became public, he would be able to prove that he always was against it. The mistake was made on the part of other Democrats who 'trusted' in the good will of Republicans that they wouldn't be smeared later on if it became public.
2. Turn your question about the computer around. How would calling a judge in order to get a warrant so we could listen to the next phone call legally, compromise the fight against terrorism?
And here is my concern: If we allow warrantless searches, then we have only the good will of the administration in power (whoever it is, because Presidents change and even if you love Bush, you are a fool indeed if you don't think that someone you don't trust will never be elected President-- if you are a Republican, imagine Bill and Hillary with unrestrained power to tap your phone) to prevent them from listening in on anyone, anywhere. The requirement that a warrant be obtained is a measure of oversight to prevent someone with a personal or professional ax to grind from abusing governmental power. And we know that Federal power has been abused by the Bush administration. Two examples that have made the news are: 1) people who have ended up on the 'no-Fly' list simply because they are active Democrats (including Senator Ted Kennedy) and 2) the use of post 9/11 Federal air tracking equipment used to track an airplane full of Texas legislators on the way to Oklahoma to boycott a special legislative session called on redistricting by Texas Republicans.
This is a special court for judges who have expertise in intelligence matters. Many of them are military veterans, or have worked for the government in intelligence-related matters in their civilian careers.
Though some might think that this resignation's impact is softened by the fact that the judge can fall back on a six-figure salary and life tenure, I look at it differently. This type of special judgeship is very prestigious and you have to have a reputation as an excellent district court judge in order to be chosen for it by, I believe, the Chief Justice of the Supreme Court. It might not seem like an especially bold move to civilians, but to other judges, this must raise a lot of eyebrows, because other judges recognize the prestige of the position.
"....If we allow warrantless searches, then we have only the good will of the administration in power..."
Eli, your whole argument is ridiculous if you add facts to your sentence... Try this: "If we allow warrantless searches on people in the U.S. phoning members of Al Qaeda...then we have only the good will of the administration in power..."
Read it with this addition and your foolishness is obvious.
"...that doesn't therefore mean that the next administration will be as restrained...."
I don't get this point? Why would President Bush's authorization of warrantless searches on international calls made from al qaeda connected persons in the U.S. lead to a subsequent president being less restrained in his search procedures?
The slippery slope argument is useless here. Do you think a subsequent person would get away with evesdropping on his political enemies because of Bush's evesdropping on terrorists? How ridiculous.
Sloan, keep spinning. Or answer a simple question. How do you know that it is only 'al Qaeda people' being monitored? That is the point of FISA's warrant req. - to make sure that the people being monitored are in fact worthy of being monitored. If your answer is any species of "because the President said so," put the glass down and step away from the kool-aid.
It's a simple, comically simple, question that no-one defending the policy has attempted to answer all week. What assurance do we have that we are monitoring the 'terrorists' and that's all? And, given the elastic definition of 'terrorist' and 'enemy combatant', how would such assurance help?
Neither of us has any evidence on the matter of who exactly was being snooped on, but the secrecy of the program (combined with the knee-jerk "throw 'em in jail" reaction to NYT publishing the story) doesn't auger well for us finding out if, in fact, non-terrorists are being monitored. But of course, you have nothing to hide, so why worry, right?
No right thinking person is suggesting that terrorists should not be spied upon. People are concerned that the justifications used in the present case are applicable to virtually any expansion of executive power. Considering that this administration has already suggested, if not stated, that various forms of opposition to the Iraq war aid our enemies, is it a huge leap to suggest that gathering information on those dissenters is justified by CinC powers? At this point, I'm not prepared to accept "he just wouldn't do that" as an answer.
"What assurance do we have that we are monitoring the 'terrorists' and that's all? And, given the elastic definition of 'terrorist' and 'enemy combatant', how would such assurance help?"
Bush has stated that the Congress is overseeing this program. Now you will tell me he's lying. Sigh. If you continue to assume that our government is the enemy, there's no common ground here. If the IRS starts using it against Democrats or whatever scenario you are contemplating, our intrepid investigative reporters and their anti-administration government anonymous sources will have to uncover it, won't they? The Bushies will not kill him or her. They will win a Pulitzer and a jillion dollar book deal.
You know, life is a "slippery slope." You cannot hold the government to Boy Scout standards that no other entity in the world adheres to. I would rather that a few innocent calls to someone's brother in Pakistan are surveilled so that we can catch the ones to Osama. I know in this day and age of safety and affluence that will sound naive to the slippery slope worriers, but I believe we are at war. Something's got to give, and I don't want it to be another Twin Towers.
I would agree with Wildaboutharrie that the President's problem in this area is not purely partisan. There are questions about the NSA program itself, but the wide assertion of "inherent power" is the catalyst. Republicans like Sununu and Craig are conservatives, but they have concerns about the power of government and the executive.
Congress will hold its hearings and perhaps will decide that the program is properly a complete creature of the executive branch. Or they may find that there is a role for warrants or legislative oversight. And if they do, that would not have to mean that the program was flawed in its inception, but that as we get further away from the 9/11 emergency some of the initiatives that were solely executive decisions need to be placed on a more permanent footing. Congress is a coequal branch of government with the responsibility for authorizing, appropriating for, and regulating the military and the intelligence community. They can do this. More to the point, if Congress is really opposed to this, they can terminate its funding. If Rockefeller (no "a" folks!), was that concerned about the program and the lack of thorough briefing, he could have pushed the issue. Even up to filibustering the appropriation.
I have concerns about excessive executive power, but it is pretty apparent that Congress has abdicated some of their responsibility. Why did Pelosi and Rockefeller stop at memos of complaint if they felt strongly?
Our American system of government was conceived as having three equal branches and periods of war, which require a stronger executive, stress it. Maybe we need to have a more aggressive strategy in prosecuting the conflict to reduce the threat, so we don't have to rely as heavily on defensive programs like the one in question.
Robertson's resignation has to be viewed in light of the FISC's record. Apparently, it has refused a warrant application only once in its entire history. There may be any number of good reasons to oppose the NSA program, but it seems like a stretch to suggest that that program will harm the credibility of the FISC, when that court is already essentially a rubber stamp.
Why put briefed in scare quotes? They were aware of the program and knew it was going on and raised not one objection in public nor did they warn the American public who supposedly are being spied upon. And Bush says he continues to work with them.
I'm not a lawyer, but it seems to me that past decisions have said international spying is not subject to FISA warrants. Am I wrong? And why are some judges better than congresspeople to oversee the program?
To date, no one of the Pelosi/Reid party has stated what they were told or what they think was withheld.
They wrote memos--to cover themselves when the program was leaked to the public for partisan reasons. If civil liberties are so sacred, why did they do nothing to protect them during the pendency of the program? Only now when they can score points against Bush and hype up impeachment talk do they reveal their deep respect for our privacy. That is indeed partisan. Too bad it destroyed a program that even Clinton utilized.
"...How do you know that it is only 'al Qaeda people' being monitored? That is the point of FISA's warrant req. - to make sure that the people being monitored are in fact worthy of being monitored..."
We don't know. If Bush is evesdropping on people not related to terrorism than such searches are unreasonable.
A warrant is needed for more than who is being looked at... its also a judgment by the court that there is probable cause. Remember the Moussaui case? The agents did not believe they had enough probable cause to search his computer so they did not attempt to get a warrant.
"....So while I am suspicious of the timing (i.e. right after the Iraq elections, plus with Patriot Act debate), it could have been worse for the President...."
News of this program would have sealed the election for Bush. It would have forced people to ask the question... do we want a president who will aggressively defend us or someone who will not. This choice would have become clearer if the story came out before the election.
It's easy to complain in an off year, but when you actually have to decide who you want... Bush wins on this issue.
".... I'd like to know if this was the case before the warrantless tapping was authorized (I mean, it would be nice to have agents testify about that)...."
It's common sense that this would be a problem. For anyone who has worked in law enforcement the warrant stuff changes behavior...it causes people to think twice and to hesitate. That may be good for a criminal case to make sure you do it right, however, hesitation and delay is not good for fighting terrorism.
I'd describe myself as a "liberalish moderate" and I'm not hoping for an impeachable offense. I like some things that President Bush has done and have not liked some (well, many) things that he has done, or left undone. But he is the president and we need him to be successful in several areas, particularly national security.
While I think the news of the program itself raises some questions, I have been more troubled by the justifications offered by the administration. Especially the inherent power argument, which I find too extensive for my philosophy of government. Regardless of the merits of this particular NSA program, I think it has prompted an overdue debate about the powers of the executive, the responsibilities of Congress, and degrees of "wartime."
I'd ask both sides of the debate here to remember that we know very little about the specific elements of this NSA surveillance activity. Much of the discussion has referred to intercepting calls, obtaining warrants to access communications to and from specific individuals, etc. That may be the case, but my interpretation of some of the Administration's comments on why they didn't go to Congress for authorization, Rockefeller's memo, and some comments from the technical community is that the surveillance method may be novel by historical standards and not always person-specific in initial hunting. Just because the activity does not fit old benchmarks for what is and is not appropriate does not mean that it should remain the sole prerogative of the executive, but it also means it may not be easily categorized.
PatCA,
The few members of Congress briefed were not allowed to comment. Accoring to public reports (and I believe Rockefeller's letter), they couldn't discuss the program with anyone, not even their staff. Revealing the information would have been a crime. They had no power to hold hearings, or call witnesses. Does this sound like 'oversight'?
McClellan: Well, as you just pointed out, Congress is an independent branch of government, and they're elected by their constituents. We briefed and informed members of Congress about this program going back to 2001; more than a dozen times since then we've briefed members of Congress –
Q: But briefing isn't power to investigate or issue subpoenas to ask questions. And I'm asking you, which of the powers of oversight were they granted?
McClellan: Congress is an independent branch of government. That's what I just pointed out, Jessica.
Q: Which has the right to check the functions of the executive. And these are –
McClellan: They have an oversight role, that's right.
Q: Okay, so in what way –
McClellan: That's why we thought it was important to brief members of Congress about this vital tool that we're using to save lives and to protect the American people, and why we talked to them about how it is limited in nature and limited in scope.
Q: But as you know, members of Congress who were briefed said that they were informed — yes, briefed, but given absolutely no recourse to formally object, to push back and say, this is not acceptable.
McClellan: They're an independent branch of government.
Q: So in what way were they given oversight?
McClellan: They were briefed. And we believe it's important to brief members of Congress, the relevant leaders –
Q: Would you also say they were given full oversight?
McClellan: They're an independent branch of government. Yes, they have –
Q: Were they given oversight?
McClellan: Yes, they have oversight roles to play.
Q: So they have oversight. So, in what way could they have acted on that oversight?
McClellan: You should ask members of Congress that question.
Look, I'm not alleging that anything terrible had happened, because I don't have any information. (Nor, may I add, do you) And without meaningful oversight, there is no way I, or anyone else independant of the executive, could know.
Sloan
"We don't know. If Bush is evesdropping on people not related to terrorism than such searches are unreasonable."
THAT is the point. Without oversight, we can't know. This demonstrates why the 'inherent power' argument proves too much.
Further, I think it HIGHLY likely that a FISA court would today approve a warrant, in an instant, based on the info we had on Moussoui (sp?) at the time. I don't think many people are asking the bar to be set especially high. We need there to BE a bar.
If everyone snooped on was in fact al Qaeda related, it makes the decision to ignore FISA (alternatively, to not seek an ammendment to FISA) all the stranger.
Stiles,
very good points.
word = yulrf, which is what this whole story makes me want to do...
"....Further, I think it HIGHLY likely that a FISA court would today approve a warrant, in an instant, based on the info we had on Moussoui (sp?) at the time...."
YOu can say this, but it is speculation. Your speculation denies the fact that the investigators did not believe they could get a warrant on Moussoui, so they did not bother trying to get one. You could argue that the investigators were wrong... but what can you do about cautious investigators... they are creatures of the system they are in.
There is no doubt that requiring a warrant after the fact would reduce the aggressiveness of evesdroppers.
What if you found a telephone number in Kalid Sheik Muhammeds files with diget missing becuase of a torn paper. From that you were able to determine that it could be ten possible numbers in the United States. There is no way you could get a warrant from a FISA court to listen to all ten numbers. Yet, the gold mine of stopping a terrorist attack could be in one of those ten numbers and you need to listen to them immediatly... is it worth it?
These are the situations that confronted Bush regarding this program. The consequences of delay cry out for warrantless searches is these instances.
"I think it HIGHLY likely that a FISA court would today approve a warrant, in an instant, based on the info we had on Moussoui (sp?) at the time."
But that's an interpretation formulated after an attack. How do you prevent an attack is the question, and the President's problem, since they don't happen every week. Our problem, too.
And if those briefed could not comment then, why are they commenting now? Why didn't they leak the program then if they were so worried? To me, it's blatantly partisan. But that's my opinion.
Sloan and Pat,
You are assuming knowledge of what the President actually did, while dismissing my speculation as to a Mousaui wasrrant based on an assumption. Pick one.
And the ten number thing would almost certainlt fly - the judge would say "Ok for now, but get back to me in a few days. Or if you find out which number it is, discontinue the other taps and destroy the information gathered imeediately." That's a senisible solution which advances security. But it requires OVERSIGHT. Judges tend not to be dummies, especially if they've been selected for FISA duty.
I know there is the temptation to look around at Robertson's background and look at this and look at that and draw conclusions about his bias or lack otherwise.
But let's step back and remember that presidents don't name appointees to the FISA court (FISC). The federal judges on FISC are appointed by the Chief Justice to serve rotating terms. Robertson was appointed by the late William Rehnquist. That is where the accountability resides. Rehnquist was a clear conservative who, by all accounts, took his administrative responsibilities as Chief Justice very seriously.
If the implication is that Rehnquist blew it on Robertson's appointment, fine. Just say so. But I'd tend to put more weight on his judgment than a selective presentation of Robertson's history.
It's not always easy to pull up bios on judges. Some districts are more public with this information than others. It may be the case that there is some deliberate balancing in terms of what President nominated the jurist to the federal bench, but it seems the key restriction is that some must be from the D.C. area.
Some links that I found interesting:
http://www.fjc.gov/history/home.nsf/page/fisc_bdy
http://www.uscourts.gov/ttb/june02ttb/interview.html
http://en.wikipedia.org/wiki/United_States_Foreign_Intelligence_Surveillance_Court
Brylin, you highlighted six cases, two of which (Carnivore and Hamdi) were national security cases. I think it likely he has a longer track record in this area of law than two cases. I'll acknowledge the possibility that your selections are representative. I don't know.
What I don't understand is if you feel he is such a poor, biased jurist, why did Rehnquist appoint him? The most likely reason I can suggest is that if it is the case that three must be from the D.C. area, than the pool of judges might be more thoroughly fished for that subset of seats.
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