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Spy court judge quits in protest

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  • Greg Cannon
    http://msnbc.msn.com/id/10538136/ Spy court judge quits in protest Jurist worried that Bush order tainted work of secret panel By Carol D. Leonnig and Dafna
    Message 1 of 1 , Dec 20, 2005
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      Spy court judge quits in protest
      Jurist worried that Bush order tainted work of secret

      By Carol D. Leonnig and Dafna Linzer
      The Washington Post
      Updated: 11:21 p.m. ET Dec. 20, 2005

      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

      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 yesterday 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

      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.

      ‘A great national debate’

      "There's going to be a great national debate on this
      subject," Specter told reporters yesterday, while
      emphasizing concerns over the White House's legal
      arguments in support of the program.

      The hearings, possibly in several committees, would
      take place at the beginning of a midterm election year
      during which the prosecution of the Iraq war is also
      likely to figure prominently in key House and Senate

      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.

      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, and I'll be watching it as this debate goes
      on over the next few weeks," Acting House Majority
      Leader Roy Blunt (R-Mo.) said in a phone interview.

      The White House continued to insist yesterday that the
      classified surveillance program is legal and that key
      congressional leaders have been informed of the NSA
      activities since they began shortly after the Sept.
      11, 2001, terrorist attacks.

      White House spokesman Scott McClellan suggested that
      the secrecy around the program may prohibit White
      House cooperation with any congressional
      investigation. "This is still a highly classified
      program, and there are details that it's important not
      be disclosed," McClellan said.

      "We've already briefed the leadership and the leaders
      of the relevant committees," McClellan said, "and the
      attorney general's going back talking to additional
      members about this so that they do have a better
      understanding of this authorization and what it's
      designed to do and how it is narrowly tailored and
      limited in how it's used."

      Since the program was made public last week by the New
      York Times, the White House has sparred publicly with
      key Democrats over whether Congress was fully informed
      and allowed to conduct oversight of the operation.

      The news 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

      "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."

      Considered a liberal judge

      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
      terrorist suspects at Guantanamo Bay, Cuba, were
      illegal and stacked against the detainees.

      Some FISA judges reached yesterday said they were
      saddened by the news of Robertson's resignation and
      wanted to hear more about the president's program.

      "I love Jim Robertson and think he's a wonderful guy,"
      said Judge George P. Kazen, another FISA judge. "I
      guess that's a decision he's made and I respect him.
      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 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.

      Yesterday, the chairman of the Senate Select Committee
      on Intelligence, Pat Roberts (R-Kan.), issued a public
      rebuke of Rockefeller for making his letter public.
      Roberts's statement did not say whether he would
      support a joint inquiry with Specter's committee.

      In response to a question about the letter, Sen. John
      McCain (R-Ariz.) suggested 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 and disputed
      Roberts's claims that he kept his concerns to himself.
      "I made my concerns known to the vice president and to
      others who were briefed. The White House never
      addressed my concerns," Rockefeller said. He also
      called for bipartisan hearings.

      The Democratic leadership wrote separately to Bush
      asking him to provide Congress with additional
      information on the program.

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