A FISA jurist appointed by the late Chief Justice William Rehnquist has quit the court in protest. And, in a related story, the New York Times is reporting that the eavesdropping-without-warrants operations “has captured what are purely domestic communications.”
The WaPo story:
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; Page 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 D. 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 …
Word of Robertson’s resignation came as two Senate Republicans yesterday joined the call for congressional investigations. … 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. … WaPo.
The NYT piece — “Spying Program Snared U.S. Calls” — tells us, according to AmericaBlog (via Memeorandum), that “[N]ow we learn that there was some ‘accidental’ spying on communications that took place solely within the U.S.” AmericaBlog further speculates about “how soon before we find out that these weren’t accidental or technical glitches?”
My question: Is this all that the NYT knows about the operation, or is the newspaper withholding other significant remnants of the story it held for over a year? (It’s tough when the “paper of record” doesn’t record what it has to begin with.) As James Bamford said yesterday on Democracy Now!:
JAMES BAMFORD: Well, there hasn’t really been very much revealed at all, simply the fact that the Bush administration has admitted that they have been eavesdropping on U.S. citizens within the United States, and apparently, they were focusing on international communications; in other words, where at least one of the terminals of the phone call was outside the United States. So that’s about all we know right now. The New York Times indicated that there was somewhere between several hundred and maybe several thousand people that were affected by this. But apparently, it’s been going on at least since 2001, so there’s probably quite a few people out there that have been surveilled, and have no knowledge about it, and again, without any court order.
Bamford, an investigative journalist and author of several books including the first book ever written about the National Security Agency, is correct. There’s too damn much we don’t know yet, and what we learn, and when we learn it, will shape congressional investigations and the call for Bush’s impeachment.
Today, Raw Story revealed that Bush claimed in 2004 that all wiretaps required warrants.
Constitutional attorney Bruce Fein, in a column for the Washington Times. goes for the jugular:
According to President George W. Bush, being president in wartime means never having to concede co-equal branches of government have a role when it comes to hidden encroachments on civil liberties. … […]
Mr. Bush’s defense generally echoed previous outlandish assertions that the commander in chief enjoys inherent constitutional power to ignore customary congressional, judicial or public checks on executive tyranny under the banner of defeating international terrorism, for example, defying treaty or statutory prohibitions on torture or indefinitely detaining United States citizens as illegal combatants on the president’s say-so.
President Bush presents a clear and present danger to the rule of law. He cannot be trusted to conduct the war against global terrorism with a decent respect for civil liberties and checks against executive abuses. Congress should swiftly enact a code that would require Mr. Bush to obtain legislative consent for every counterterrorism measure that would materially impair individual freedoms. …
Dick Cheney also presents a “clear and present danger”:
DANA BASH [CNN reporter with Cheney on overseas trip]: You talked about the fact that you briefed Congress voluntarily [about the spying program], that you do have a review process.
BASH: But let’s just say, in ten years or a few years, a president is elected who doesn’t want to do those things, but you’ve given him this kind of power. What happens then?
CHENEY: Well, it will be up to him whether or not he uses it.
BASH: Does it concern you that somebody you met you wouldn’t necessarily trust with that kind of power.
CHENEY: The fact is the law is the law. The Constitution is there. It’s been adhered to and followed in this case. …
CNN Transcript, Situation Room, Dec. 20, 2005
Great questions, Dana Bash. You nailed yourself, Dick. (See also: “Cheney defends secret spying.”) Congress must move immediately to bar both the president and vice president from these illegal operations and then must commence simultaneous impeachment proceedings.
And how many Republican Senators now do we have now calling for hearings? Arlen Specter was the first. “‘There’s going to be a great national debate on this subject,’ Specter told reporters yesterday …” (WaPo) Now we have Hagel and Snowe. Can we expect more? Who?
Hagel and Snowe joined three Democratic colleagues — Dianne Feinstein (Calif.), Carl M. Levin (Mich.) and Ron Wyden (Ore.) — in calling for a joint investigation by the Senate’s Judiciary and Intelligence panels into the classified program.
Roy Blunt (R.-Missouri) says we don’t need no stinkin’ hearings. I suppose the predictable bunch will rally ’round the preznit — the Tom Coburns and Pat Roberts of the Senate.
More on Robertson’s decision — and a Potemkin court:
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.” …
The WaPo article does say that he was considered a “liberal” judge (by who the article doesn’t say) apparently because he “has often ruled against the Bush administration’s assertions of broad powers in the terrorism fight, most notably in Hamdan v. Rumsfeld.”
Oh, I get it. You’re a liberal judge if you vote on the side of the Bill of Rights. What an absurd assumption by the WaPo writers.
(All emphases mine.)