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
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
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.