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Judges: Was Illegal Spying Used to Get FISA Warrants?

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Judges: Was Illegal Spying Used to Get FISA Warrants?

Thu, 22 Dec 2005 09:59:49 -0800

 

 

 

 

 

http://www.truthout.org/docs_2005/122205I.shtml

 

 

Judges on Surveillance Court to Be Briefed on Spy Program

By Carol D. Leonnig and Dafna Linzer

The Washington Post

 

Thursday 22 December 2005

 

The presiding judge of a secret court that oversees government

surveillance in espionage and terrorism cases is arranging a

classified briefing for her fellow judges to address their concerns

about the legality of President Bush's domestic spying program,

according to several intelligence and government sources.

 

Several members of the Foreign Intelligence Surveillance Court

said in interviews that they want to know why the administration

believed secretly listening in on telephone calls and reading e-mails

of U.S. citizens without court authorization was legal. Some of the

judges said they are particularly concerned that information gleaned

from the president's eavesdropping program may have been improperly

used to gain authorized wiretaps from their court.

 

" The questions are obvious, " said U.S. District Judge Dee Benson

of Utah. " What have you been doing, and how might it affect the

reliability and credibility of the information we're getting in our

court? "

 

Such comments underscored the continuing questions among judges

about the program, which most of them learned about when it was

disclosed last week by the New York Times. On Monday, one of 10 FISA

judges, federal Judge James Robertson, submitted his resignation - in

protest of the president's action, according to two sources familiar

with his decision. He will maintain his position on the U.S. District

Court here.

 

Other judges contacted yesterday said they do not plan to resign

but are seeking more information about the president's initiative.

Presiding Judge Colleen Kollar-Kotelly, who also sits on the U.S.

District Court for the District of Columbia, told fellow FISA court

members by e-mail Monday that she is arranging for them to convene in

Washington, preferably early next month, for a secret briefing on the

program, several judges confirmed yesterday.

 

Two intelligence sources familiar with the plan said

Kollar-Kotelly expects top-ranking officials from the National

Security Agency and the Justice Department to outline the classified

program to the members.

 

The judges could, depending on their level of satisfaction with

the answers, demand that the Justice Department produce proof that

previous wiretaps were not tainted, according to government officials

knowledgeable about the FISA court. Warrants obtained through secret

surveillance could be thrown into question. One judge, speaking on the

condition of anonymity, also said members could suggest disbanding the

court in light of the president's suggestion that he has the power to

bypass the court.

 

The highly classified FISA court was set up in the 1970s to

authorize secret surveillance of espionage and terrorism suspects

within the United States. Under the law setting up the court, the

Justice Department must show probable cause that its targets are

foreign governments or their agents. The FISA law does include

emergency provisions that allow warrantless eavesdropping for up to 72

hours if the attorney general certifies there is no other way to get

the information.

 

Still, Bush and his advisers have said they need to operate

outside the FISA system in order to move quickly against suspected

terrorists. In explaining the program, Bush has made the distinction

between detecting threats and plots and monitoring likely, known

targets, as FISA would allow.

 

Bush administration officials believe it is not possible, in a

large-scale eavesdropping effort, to provide the kind of evidence the

court requires to approve a warrant. Sources knowledgeable about the

program said there is no way to secure a FISA warrant when the goal is

to listen in on a vast array of communications in the hopes of finding

something that sounds suspicious. Attorney General Alberto R. Gonzales

said the White House had tried but failed to find a way.

 

One government official, who spoke on the condition of anonymity,

said the administration complained bitterly that the FISA process

demanded too much: to name a target and give a reason to spy on it.

 

" For FISA, they had to put down a written justification for the

wiretap, " said the official. " They couldn't dream one up. "

 

The NSA program, and the technology on which it is based, makes it

impossible to meet that criterion because the program is designed to

intercept selected conversations in real time from among an enormous

number relayed at any moment through satellites.

 

" There is a difference between detecting, so we can prevent, and

monitoring. And it's important to note the distinction between the

two, " Bush said Monday. But he added: " If there is a need based upon

evidence, we will take that evidence to a court in order to be able to

monitor calls within the United States. "

 

The American Civil Liberties Union formally requested yesterday

that Gonzales appoint an outside special counsel to investigate and

prosecute any criminal acts and violations of laws as a result of the

spying effort.

 

Also yesterday, John D. Negroponte, Bush's director of national

intelligence, sent an e-mail to the entire intelligence community

defending the program. The politically tinged memo referred to the

disclosure as " egregious " and called the program a vital,

constitutionally valid tool in the war against al Qaeda.

 

Benson said it is too soon for him to judge whether the

surveillance program was legal until he hears directly from the

government.

 

" I need to know more about it to decide whether it was so

distasteful, " Benson said. " But I wonder: If you've got us here, why

didn't you go through us? They've said it's faster [to bypass FISA],

but they have emergency authority under FISA, so I don't know. "

 

As it launched the dramatic change in domestic surveillance

policy, the administration chose to secretly brief only the presiding

FISA court judges about it. Officials first advised U.S. District

Judge Royce C. Lamberth, the head of FISA in the fall of 2001, and

then Kollar-Kotelly, who replaced him in that position in May 2002.

U.S. District Judge George Kazen of the Southern District of Texas

said in an interview yesterday that his information about the program

has been largely limited to press accounts over the past several days.

 

" Why didn't it go through FISA, " Kazen asked. " I think those are

valid questions. The president at first said he didn't want to talk

about it. Now he says, 'You're darn right I did it, and it's

completely legal.' I gather he's got lawyers telling him this is

legal. I want to hear those arguments. " Judge Michael J. Davis of

Minnesota said he, too, wants to be sure the secret program did not

produce unreliable or legally suspect information that was then used

to obtain FISA warrants.

 

" I share the other judges' concerns, " he said.

 

But Judge Malcolm Howard of eastern North Carolina said he tends

to think the terrorist threat to the United States is so grave that

the president should use every tool available and every ounce of

executive power to combat it.

 

" I am not overly concerned " about the surveillance program, he

said, but " I would welcome hearing more specifics. "

 

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Researcher Julie Tate contributed to this report.

 

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