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http://www.washingtonpost.com/wp-dyn/content/article/2005/12/20/AR2005122000685.html

Spy Court Judge Quits In Protest

Jurist Concerned Bush Order Tainted Work of Secret Panel

By Carol D. Leonnig and Dafna Linzer

Washington Post Staff Writers

Wednesday, December 21, 2005; A01

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.

Robertson, who was appointed to the federal bench in Washington by President Bill Clinton in 1994 and was later selected by then-Chief Justice William H. Rehnquist to serve on the FISA court, declined to comment when reached at his office late yesterday.

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.) 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.

Hagel and Snowe joined Democrats Dianne Feinstein (Calif.), Carl M. Levin (Mich.) and Ron Wyden (Ore.) in calling for a joint investigation by the Senate judiciary and intelligence panels into the classified program.

The hearings would occur at the start of a midterm election year during which the prosecution of the Iraq war could figure prominently in House and Senate races.

Not all Republicans agreed with the need for hearings and backed White House assertions that the program is a vital tool in the war against al Qaeda.

"I am personally comfortable with everything I know about it," Acting House Majority Leader Roy Blunt (R-Mo.) said in a phone interview.

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.

Revelation of the program last week by the New York Times also spurred considerable debate among federal judges, including some who serve on the secret FISA court. For more than a quarter-century, that court had been seen as the only body that could legally authorize secret surveillance of espionage and terrorism suspects, and only when the Justice Department could show probable cause that its targets were foreign governments or their agents.

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.

"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."

Bush said Monday that the White House briefed Congress more than a dozen times. But those briefings were conducted with only a handful of lawmakers who were sworn to secrecy and prevented from discussing the matter with anyone or from seeking outside legal opinions.

Sen. John D. Rockefeller IV (D-W.Va.) revealed Monday that he had written to Vice President Cheney the day he was first briefed on the program in July 2003, raising serious concerns about the surveillance effort. House Minority Leader Nancy Pelosi (D-Calif.) said she also expressed concerns in a letter to Cheney, which she did not make public.

The chairman of the Senate Select Committee on Intelligence, Pat Roberts (R-Kan.), issued a public rebuke of Rockefeller for making his letter public.

In response to a question about the letter, Sen. John McCain (R-Ariz.) suggested that Rockefeller should have done more if he was seriously concerned. "If I thought someone was breaking the law, I don't care if it was classified or unclassified, I would stand up and say 'the law's being broken here.' "

But Rockefeller said the secrecy surrounding the briefings left him with no other choice. "I made my concerns known to the vice president and to others who were briefed," Rockefeller said. "The White House never addressed my concerns."

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To be frank I've not really followed the story all that closely, but, let me see if I have this correct.....

Intelligence teams either know they have an operative for a terrorist group in their sights. He makes a call to a number that happens to be in the U.S. Is anyone saying that before we listen to that call that we go to any court for authorization?

Would those answering yes be the same people who would not have opened up Moussaoui's laptop?

Obviously we haven't seen many of the details of these particular wiretaps revealed as of yet. When we do we'll certainly no whether they are absolutely horrible and wrong or entirely reasonable and right or maybe somewhere in between. In any case, if my intelligence people raid a terrorist safe house, find a computer, find numbers on the computer, I want them to quickly start listening to see who's calling to warn them the house was blown before they are warned off using those lines.

Even if those lines are in America.

Even if they are my home phone number and used as a ruse by terrorists to keep our government busy.

Again, I suppose the details will reveal how one should feel, but, one should certainly be capable of finding situations in which this happened to feel awful OR feel quite ok. Can everyone do that?

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Obviously we haven't seen many of the details of these particular wiretaps revealed as of yet. When we do we'll certainly no whether they are absolutely horrible and wrong or entirely reasonable and right or maybe somewhere in between. In any case, if my intelligence people raid a terrorist safe house, find a computer, find numbers on the computer, I want them to quickly start listening to see who's calling to warn them the house was blown before they are warned off using those lines.

I believe the main problem here is not wiretapping per se, but rather doing so without proper oversight or following proper procedures.

I'm sure the court order is not required for every phone call, for example. There is no way they can obtain that before that phone call happens. So I assume that means a court order would specify who can be wiretapped and how... The opposite of that would be giving a green light and full discretion to wiretap to authorities. From what I hear that resulted in wiretapping and simiar activities against groups like PETA, Green Peace, etc.

"They questioned the legality of the operation and the extent to which the White House kept Congress informed."

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yo Art, it was great meeting you Sunday. Here's my take: If our intelligence people don't have the authorization to quickly do what they believe needs to be done, then let's give it to them.

I don't know how it would work administratively. Senior intelligence officers might be given authority to allow surveillance on the fly. Their decisions might be reviewed by the court as soon as it is reasonably possible. If a person is officially identified to be a terrorist suspect then all of the people that he communicates with can instantly fall under surveillance under a blanket temporary authorization that can be extended later by the spy court.

The point is, rather than go around the court, just change the rules so that the job can get done and still allow for oversight.

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Intelligence teams either know they have an operative for a terrorist group in their sights. He makes a call to a number that happens to be in the U.S. Is anyone saying that before we listen to that call that we go to any court for authorization?

I think the way the law is written is that you can go ahead and listen as long as someone contacts the court within 72 hours. There is nothing about this that slows the process down from what I've read which is why so many are questioning this move.

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I think the way the law is written is that you can go ahead and listen as long as someone contacts the court within 72 hours. There is nothing about this that slows the process down from what I've read which is why so many are questioning this move.

I didn't know about the 72 hour thing. That pretty much is what I was suggesting. If they can do that, then what's the problem?

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We need more information that we don't have. The scenario Art described is obviously not what is generating all the public scrutiny. I bet that the NSA monitors calls coming into the U.S without any problems. I am guessing that any type of valid terrorist scenario, like the one Art describes, is not what concerns this judge. I am guessing that certain agencies are spying on people/organizations with no direct ties to terrorists or are involved in age old criminal activity which falls under the old rules. Again, not enough information is being let out.

However, my biggest problem with all this, and has always been my concern, is oversight and accountability. Hey, spy on whoever you want, just justify your actions at sometime during the investigation to someone of authority.

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I have been before Judge Robertson numerous times and he is one of the best judges in DC District Court. He's very smart and honorable. He is also tough but fair and he respects the Constitution.

So before posters make ignorant comments about Judge Robertson and his value to the FISA Court, it might be nice if you knew what you were talking about. His resignation is truly a loss to the FISA Court.

Talk about DUH moments. How could I never have thought that one of the purposes behind the warrantless taps was to launder the evidence supporting the FISA warrant applications? That's typical Justice Dept. lawless crap. They always think they can get away with skirting their obligations because they hold almost all the cards and it's so damn hard to call them on it. It's doubly hard to fight them when all they have to do is yell "National Security" and everyone bows down in silence in a national, collective spine meltdown. I suppose Judge Kotelly's effort to force the government to certify that they weren't evidence laundering was at least something but it certainly is evidence that these judges suspected what was going on and why they were doing it. But this half-hearted, rather typically lame attempt via a "certification" to ensure the integrity of the Court and, oh yea, the legal process is worthless with this Justice Department. Please, this is why I rarely take a prosecutor's representations at face value.

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I want to make one thing "Perfectly Clear" (in my best Nixon voice).

This is not a "how one should feel" issue (sorry Art, how we feel about it does impact the debate but not the legalities). It is a legal issue.

Illegal government spying on Americans is a violation of individual liberties. But are the current revelations evidence of illegal activity on the part of the White House?

Perhaps not.

Public Law #105-272 was signed into law by President Bill Clinton. What the law does is make it possible for government intelligence to have basically unrestricted wiretapping ability. At one time each wiretap had to be approved by a court order - no more. The new wiretap laws allow the government carte blanche under some perceived "emergency” (the general threat level remains at ELEVATED, Yellow) as determined by the Attorney General without a court order. This has effectively shifted the power from the judiciary to the executive branch thus profoundly damaging what used to be called the "separation of powers." I'm not a legal type so perhaps an Extremer that is will help here. Redman?

And then there is Echelon.

There is no such thing as privacy, get used to it.

On a somewhat related note; even now the anti smoking crowd is attacking those folks with foster children by mandating that the foster parents refrain from smoking in their own home. Soon why not forbid smoking at home by all parents, foster or otherwise? If that sticks then why not forbid grandparents from smoking in their homes? Then finally, to become a parent one will be forced to get legally certified "smoke free".

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To be frank I've not really followed the story all that closely, but, let me see if I have this correct.....

Intelligence teams either know they have an operative for a terrorist group in their sights. He makes a call to a number that happens to be in the U.S. Is anyone saying that before we listen to that call that we go to any court for authorization?

If we already know he's making the call, then we're already listening.

Like people have said, there are provisions for obtaining court approval afterwards, and there are also provisions for acting without a warrant in case of imminent attack. The attorney general can authorize wiretaps without warrants for forieng intelligence that does not involve US citizens.

It is odd that what the administration wants to do doesn't fall within one of these baskets, and it certainly raises more questions than answers.

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Public Law #105-272 was signed into law by President Bill Clinton. What the law does is make it possible for government intelligence to have basically unrestricted wiretapping ability. At one time each wiretap had to be approved by a court order - no more. The new wiretap laws allow the government carte blanche under some perceived "emergency” (the general threat level remains at ELEVATED, Yellow) as determined by the Attorney General without a court order. This has effectively shifted the power from the judiciary to the executive branch thus profoundly damaging what used to be called the "separation of powers." I'm not a legal type so perhaps an Extremer that is will help here. Redman?

Do you have a source for this, the Bill's summary states:

Authorizes the AG to approve the installation of such a device on an emergency basis to gather such information if: (1) a judge is informed of the AG's decision to do so; and (2) an application is made to such judge within 48 hours after the installation. Prohibits any information from being utilized if the application is denied. Authorizes the AG to allow the use of such a device to obtain such information without a court order for a period not to exceed 15 days following a declaration of war by the Congress. Requires notification to the person involved that information so obtained is to be used or disclosed.

http://thomas.loc.gov/cgi-bin/bdquery/z?d105:H.R.3694:@@@L&summ2=m&

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"Roving Wiretaps" Language added to H.R. 3694, the Intelligence Authorization Conference Report.

SEC. 604. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION REQUIREMENTS.

(a) In General.—Section 2518(11)(B) of title 18, United States Code, is amended—

(1) in clause (ii), by striking ``of a purpose'' and all that follows through the end of such clause and inserting ``that there is probable cause to believe that the person's actions could have the effect of thwarting interception from a specified facility;'';

(2) in clause (iii), by striking ``such purpose'' and all that follows through the end of such clause and inserting ``such showing has been adequately made; and''; and

(3) by adding at the end the following clause:

``(iv) the order authorizing or approving the interception is limited to interception only for such time as it is reasonable to presume that the person identified in the application is or was reasonably proximate to the instrument through which such communication will be or was transmitted.''.

(B) Conforming Amendments.—Section 2518(12) of title 18, United States Code, is amended—

(1) by inserting ``(a)'' after ``by reason of subsection (11)'';

(2) by striking ``the facilities from which, or''; and

(3) by striking the comma following ``where''.

###

Also

H.R. 3694 rests much of its authority on Executive Order 12333 established by President Reagan in December of 1981. Title VI, Section 403 of the act states that the Attorney General can authorize wiretaps on an "emergency basis" without the approval of a judge. It requires only that a judge be notified of the intention and that the tap is allowed for 48 hours without judicial permission.

Not incidentally, the term "emergency" is not defined in the bill and therefore can be whatever the Attorney General desires it to be. As will be shown later, it can be easily deduced from this that the government is merely authorizing itself by paper legislation what it has already been doing for some time. What this bill has resulted in, among other things, is a major erosion of the dividing line in the separation of powers. The authority to approve wiretapping has been effectively shifted from the judiciary to the executive branch of government, thereby creating a further blurring of the vital division establishing that constitutional separation of powers--the protective barrier that divides the three main components of government in this country.

It was the intention of the framers of the Constitution to establish a certain tension between the legislative, judicial and executive branches for the purpose of making government, to a degree, self-regulating. As those divisions become weaker and less substantial, government becomes more independent from the will of the people. When those divisions are finally erased, this nation will be in the full clutch of a dictatorship--at least one more easily recognizable than the present one.

In a seemingly prophetic portent of things to come the CATO Institute, a Washington-based conservative think tank, reported that "...the 1994 Communications Assistance in Law Enforcement Act (CALEA)...gave the FBI extraordinary power to demand that telephone companies rebuild their networks to make wiretapping easier. The FBI is already straining at the bounds of its authority," the report continues, "at one point demanding to be able to tap one in every hundred phone conversations simultaneously. Rep. Bob Barr (R.-Ga.) has fought to keep the FBI accountable." [3]

In a previous WINDS article it was revealed that "when CALEA passed in 1994, it promised to reimburse regional carriers for embedding a common law enforcement interface into the backbone of their call switching networks. Instead of restoring law enforcement to their old vantage ground, the new requirements would give police immediate access into the nerve center of the regional telephone carrier - a massive leap past what they had before. Where before law enforcement had to work to find the correct copper wire to tap into, now they are asking for the equivalent of requiring every new home to be built with listening devices in the walls in case they want to eavesdrop someday." [4]

The CATO Institute, reporting on proposed legislation clear back in October of 1996 commented, "Other measures proposed for passage...include a provision allowing law enforcement officers to use "roving wiretaps" without getting permission from a court to do so. This means that the police could tap your phone without a warrant if they saw someone they think might be a criminal enter your house or place of business. Another proposed rule would allow investigators to use "emergency" wiretaps, which can be used for 48 hours without a warrant, even when there is no emergency."

Their fears were realized, of course, with the passage of House Resolution 3694.

"Supporters of the new roving wiretap rule have succeeded in concealing its impact from the public. The media has widely reported that the roving wiretap proposal would allow investigators to eavesdrop on criminals who are moving from phone to phone to evade interception. But federal law already permits this type of wiretap -- when investigators have satisfied a court that it is necessary. Requiring police to get the permission of a judge is essential to protect the privacy of the innocent. According to yearly reports filed with Congress by the Administrative Office of United States Courts (AO), over 80 percent of calls intercepted by wiretaps are innocent; roving wiretaps intercept an even higher percentage of calls placed by innocent parties who are not suspected of any crime. The new proposal would do away with judicial safeguards." [ibid.]

The author of the CATO article, Solveig Bernstein, makes a growingly apparent observation when he says, "The natural tendency of any bureaucracy is to expand. If a government program fails, the administrators insist this was not their fault -- they simply needed more money, more power, and more guns. In the wake of the TWA disaster and the Atlanta bombing, running true to bureaucratic form, law enforcement interests promise they can offer us perfect security, if only we give them more power."

The power Mr. Bernstein refers to does not replicate itself like the government's magic computer money; where once you had "x" amount of power and now you have 2x. Power is not given, it is given away. When a nation's citizens "give" more power to government they "give away" that power in the form of less freedom, less privacy for themselves resulting in less accountability by their government to the citizen--and any less accountability than presently exists approaches zero.

To highlight that attitude of unaccountability Bernstein says that "the Senate appears ready to play into their hands, even though polls show that 70 percent of Americans think wiretaps should be banned." Isn't it interesting how when polls agree with the government's desires, they are used to justify their actions, but totally ignored when it does not serve them?

THE FOREIGN INTELLIGENCE SURVEILLANCE COURT

(Another Paper Shredder for the Constitution)

"In a highly restricted room inside the Department of Justice Building in Washington D.C. resides a federal court that meets in complete secrecy," begins an essay by Patrick S. Poole, former Deputy Director for the Center for Technology Policy, a division of the Washington-based Free Congress Foundation. [5]

In his article entitled, "Inside America's Secret Court" Mr. Poole reveals the workings of a legal entity known by few Americans but whose workings can, in Poole's words, "result in criminal charges, convictions and prison sentences for US citizens, their writs and rulings [being] permanently sealed from review by those accused of crimes and from any substantive civilian review."

This court handles wiretap and other surveillance requests along with physical search warrants for the U.S. Intelligence community and the Department of Justice. The FISC is the direct offspring of the Foreign Intelligence Surveillance Act (FISA) of 1978, legislation that resulted from the increasing acts of terrorism against Americans abroad. It was chartered by President Jimmy Carter in Executive Order 12139 which appears to be the first real endowment of authority upon the Attorney General for initiating wiretaps without court order.

"During the 20-year tenure of the FISC," Poole claims, "the court has received over 10,000 applications for covert surveillance and physical searches. To date, not a single application has been denied....The FISA court issues more surveillance and physical search orders," the essay reveals, "than the entire federal judiciary combined." [ibid.] [emphasis supplied]. Also of interest, Poole points out, is that there is a separate FISC appeals court that, in twenty years of its existence, "has never heard a case."

"...The records of the Administrative Office of the United States Courts show that federal electronic intercepts have increased 30-40 percent since Clinton took office, and no federal magistrate has turned down a federal request for an intercept order since 1988."[6]

In 1993 Attorney General Janet Reno expanded the Justice Department's power beyond mere wiretapping to the issuing of warrantless physical searches which resulted, after the fact, in Congress' broadening Justice's authority to do so by passing the Intelligence Authorization Act of 1995.

"This expansion also included the power for evidence gathered in FISA surveillance and searches to be used in criminal proceedings. However, all information regarding the order and any evidence obtained under the order are permanently sealed and classified "top secret." The effect of this provision has been that US citizens are being charged with crimes in federal court and not allowed to review the evidence against them, nor are their attorneys permitted to see the warrants that authorized the search." [5]

"Many constitutional scholars and civil liberty advocates," Poole claims, "note that the overly broad powers of the FISA statute and court authority are in direct violation of the Fourth Amendment protections against unreasonable searches and general warrants. With such a powerful weapon against citizens‚ Constitutional liberties, many opponents of the court argue that Congress should conduct extensive oversight of the court. But congressional oversight of the FISA court is virtually non-existent." [ibid.]

The sole oversight report for all of 1997 consisted of just two paragraphs, but which showed an exponential increase in approved surveillance orders, says the Center for Technology Policy report. There has been "a sharp increase in FISC orders...since the ascendance of the Clinton Administration."

The FISC clearly violates the Constitution's Fourth Amendment against "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," not to mention the part of that amendment that guarantees against warrants without probable cause.

As mentioned previously, the secret court seals all evidence from the eyes of both the accused and his attorney's, thus violating the Sixth Amendment rights to a fair trial by jury. Poole relates an instance of one Richard Johnson in which "the judge instructed the jury that evidence against Johnson existed, and yet would not be presented for "national security" reasons, requiring the jury to rely on the "testimony" of the judge. This prevented Johnson's attorneys from challenging evidence that was not available to them but was testified to by the judge himself." [ibid.] This sort of procedure also makes the legal privilege of the defendant's attorneys to cross-examine witnesses realistically impossible.

A writer for the Washington Post claims "the FISA standard is constitutional" because it is to be used for counterintelligence probes and not for criminal investigations.[7] But according to Mr. Poole "to date, over 90 criminal cases have resulted from evidence gathered under a FISC order."

In addition to the constitutional violations, Poole claims that the Clinton Administration has used "the top secret court to gain economic information and data for political party contributors...." This is indeed an interesting twist on the definition of what constitutes "national security."

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