Judges on Secretive
Panel Speak Out
on Spy Program
 |
|
Photo: Doug Mills/The New York Times
Judges Harold A. Baker, from left, Allan Kornblum and
Stanley S. Brotman spoke with one another Tuesday before a hearing
on Capitol Hill. |
By Eric Lichtblau,
NYTimes on the Web, March 29, 2006
WASHINGTON, March 28 — Five
former judges on the nation's most secretive court, including one who resigned
in apparent protest over President Bush's domestic eavesdropping, urged Congress
on Tuesday to give the court a formal role in overseeing the surveillance
program.
In a rare glimpse into the inner workings of the secretive court, known as the
Foreign Intelligence Surveillance Court, several former judges who served on the
panel also voiced skepticism at a Senate hearing about the president's
constitutional authority to order wiretapping on Americans without a court
order. They also suggested that the program could imperil criminal
prosecutions that grew out of the wiretaps.
Judge Harold A. Baker, a sitting federal judge in Illinois who served on the
intelligence court until last year, said the president was bound by the law
"like everyone else." If a law like the Foreign Intelligence Surveillance
Act is duly enacted by Congress and considered constitutional, Judge Baker said,
"the president ignores it at the president's peril."
Judge Baker and three other judges who served on the intelligence court
testified at a Senate Judiciary Committee hearing in support of a proposal by
Senator Arlen Specter, Republican of Pennsylvania, to give the court formal
oversight of the National Security Agency's eavesdropping program.
Committee members also heard parts of a letter in support of the proposal from a
fifth judge, James Robertson, who left the court last December, days after the
eavesdropping program was disclosed.
The intelligence court, created by Congress in 1978, meets in a tightly guarded,
windowless office at the Justice Department. The court produces no public
findings except for a single tally to Congress each year on the number of
warrants it has issued — more than 1,600 in 2004. Even its roster of
judges serving seven-year terms was, for a time, considered secret.
But Mr. Bush's decision effectively to bypass the court in permitting
eavesdropping without warrants has raised the court's profile. That was
underscored by the appearance on Tuesday of the four former FISA judges:
Judge Baker; Judge Stanley S. Brotman, who left the panel in 2004; Judge John F.
Keenan, who left in 2001; and Judge William H. Stafford Jr., who left in 2003.
All four sit on the federal judiciary.
At a hearing lasting more than three hours, the former FISA judges discussed in
detail their views on the standards of proof required by the court, its
relations with the Justice Department, and the constitutional, balance-of-power
issues at the heart of the debate over the N.S.A. program. The agency
monitored the international communications of people inside the United States
believed to be linked to Al Qaeda.
The public broadcasting of the court's business struck some court watchers as
extraordinary. "This is unprecedented," said Magistrate Judge Allan
Kornblum, who supervised Justice Department wiretap applications to the court
for many years and testified alongside the four former judges.
 |
|
|
Photo: Beverly Rezneck/Polaris
Judge
James Robertson quit the intelligence court just days after the spy
program was disclosed. |
|
But the most pointed testimony may
have come from a man who was not at the hearing: Judge Robertson.
A sitting federal judge in Washington, Judge Robertson resigned from the
intelligence court just days after the N.S.A. program was disclosed.
Colleagues say he resigned in frustration over the fact that none of the court's
11 judges, except for the presiding judge, were briefed on the program or knew
of its existence. But Judge Robertson has remained silent, declining all
requests for interviews, and his comments entered into The Congressional Record
on Tuesday represented his first public remarks on the controversy.
In a March 23 letter in response to a query from Mr. Specter, the judge said he
supported Mr. Specter's proposal "to give approval authority over the
administration's electronic surveillance program" to the court.
The Bush administration, in its continued defense of the program, maintains that
no change in the law is needed because the president has the inherent
constitutional authority to order wiretaps without warrants in defense of the
country.
Mr. Specter's proposal seeks to give the intelligence court a role in ruling on
the legitimacy of the program. A competing proposal by Senator Mike
DeWine, Republican of Ohio, would allow the president to authorize wiretaps for
45 days without Congressional oversight or judicial approval.
Judge Robertson made clear that he believed the FISA court should review the
surveillance program. "Seeking judicial approval for government activities
that implicate constitutional protections is, of course, the American way," he
wrote.
But Judge Robertson argued that the court should not conduct a "general review"
of the surveillance operation, as Mr. Specter proposed. Instead, he said
the court should rule on individual warrant applications for eavesdropping under
the program lasting 45 or 90 days.
Acknowledging the need for secrecy surrounding such a program, he said the FISA
court was "best situated" for the task. "Its judges are independent,
appropriately cleared, experienced in intelligence matters, and have a perfect
security record," Judge Robertson said.
He did not weigh in on the ultimate question of whether he considered the N.S.A.
program illegal. The judges at the committee hearing avoided that
politically charged issue despite persistent questioning from Democrats, even as
the judges raised concerns about how the program was put into effect.
Judge Baker said he felt most comfortable talking about possible changes to
strengthen the foreign intelligence law. "Whether something's legal or
illegal goes beyond that," he said, "and that's why I'm shying away from
answering that."
|
