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Wednesday, December 21, 2005

There Goes the Judge 

WaPo reports that a federal judge has quit the FISA court in protest of the President's illegal domestic-surveillance program:
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 . . . .

Word of Robertson's resignation came as two Senate Republicans joined the call for congressional investigations into the National Security Agency's warrantless interception of telephone calls and e-mails to overseas locations by U.S. citizens suspected of links to terrorist groups. They questioned the legality of the operation and the extent to which the White House kept Congress informed.

Sens. Chuck Hagel (Neb.) [that name again! -- S.] and Olympia J. Snowe (Maine) echoed concerns raised by Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, who has promised hearings in the new year . . . .

At the White House, spokesman Scott McClellan was asked to explain why Bush last year said, "Any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so." McClellan said the quote referred only to the USA Patriot Act.
Robertson's abrupt resignation is not the first tiff between the Bush administration and the judicial body whose oversight duties it has contrived to circumvent. Our distinguished colleague Susie Madrak of Suburban Guerrilla unearthed a 2002 story about an earlier contretemps -- one that may explain the administration's desire to bypass FISA altogether, legal niceties be damned:
The secretive federal court that approves spying on terror suspects in the United States has refused to give the Justice Department broad new powers, saying the government had misused the law and misled the court dozens of times, according to an extraordinary legal ruling released yesterday.

A May 17 opinion by the court that oversees the Foreign Intelligence Surveillance Act (FISA) alleges that Justice Department and FBI officials supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh.

Authorities also improperly shared intelligence information with agents and prosecutors handling criminal cases in New York on at least four occasions, the judges said . . . .

FBI and Justice Department officials have said that the fear of being rejected by the FISA court, complicated by disputes such as those revealed yesterday, has at times caused both FBI and Justice officials to take a cautious approach to intelligence warrants.

Until the current dispute, the FISA court had approved all but one application sought by the government since the court's inception . . . .

The opinion itself -- and the court's unprecedented decision to release it -- suggest that relations between the court and officials at the Justice Department and the FBI have frayed badly.

FISA applications are voluminous documents, containing boilerplate language as well as details specific to each circumstance. The judges did not say the misrepresentations were intended to mislead the court, but said that in addition to erroneous statements, important facts have been omitted from some FISA applications.

In one case, the FISA judges were so angered by inaccuracies in affidavits submitted by FBI agent Michael Resnick that they barred him from ever appearing before the court, according to the ruling and government sources.
UPDATE: William Arkin of Early Warning has some interesting things to say about President Bush's contention that "discussing this program is helping the enemy."

UPDATE II: The hardware of Echelon.

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