Spy Court Judge Quits In Protest

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."

Staff writers Jonathan Weisman and Charles Babington
and researcher Julie Tate contributed to this report.

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article/2005/12/20/AR2005122000685_pf.html