Twice in the past four years, a top Justice Department lawyer warned the presiding judge of a secret surveillance court that information overheard in President Bush’s eavesdropping program may have been improperly used to obtain wiretap warrants in the court, according to two sources with knowledge of those events.
The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly — who, like her predecessor, Royce C. Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e‑mails ordered by Bush was legal. Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.
James A. Baker, the counsel for intelligence policy in the Justice Department’s Office of Intelligence Policy and Review, discovered in 2004 that the government’s failure to share information about its spying program had rendered useless a federal screening system that the judges had insisted upon to shield the court from tainted information. He alerted Kollar-Kotelly, who complained to Justice, prompting a temporary suspension of the NSA spying program, the sources said.
Both judges expressed concern to senior officials that the president’s program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions. Yet the judges believed they did not have the authority to rule on the president’s power to order the eavesdropping, government sources said, and focused instead on protecting the integrity of the FISA process.
I don’t know much, but I know that it’s really stupid to piss off a federal judge. They have a job ’til they die, and in their courtroom, they have all the power.
The judges ordered that any warrant application which included information from the warrantless wiretapping be tagged, and that the evidence from the warrantless wiretapping not be the basis for the application. “The judge required that high-level Justice officials certify the information was complete — or face possible perjury charges.” Then someone screwed up at the DoD, and Kollar-Kotelly yelled at Don Rumsfeld for a while.
it confused the FISA court judges when, in their recent public defense of the program, [NSA head Michael] Hayden and Attorney General Alberto R. Gonzales insisted that NSA analysts do not listen to calls unless they have a reasonable belief that someone with a known link to terrorism is on one end of the call.…
Several FISA judges said they also remain puzzled by Bush’s assertion that the court was not “agile” or “nimble” enough to help catch terrorists. The court had routinely approved emergency wiretaps 72 hours after they had begun, as FISA allows, and the court’s actions in the days after the Sept. 11 attacks suggested that its judges were hardly unsympathetic to the needs of their nation at war.
Responding to concerns after 9/11, the court streamlined the already minimal procedures for seeking a FISA warrant, allowing every known al Qaeda associate to be under surveillance immediately. (Why they weren’t before is a question for another day.)
This President has received more FISA warrants than any previous President. But like the God-king he wishes he were, it isn’t enough to have a tissue-paper thin barrier which protects ordinary citizens. When there was enough evidence to get a warrant, he applied for one, and when there wasn’t enough, he didn’t.
That’s not how the rules work for everyone else. If you need a fishing license to catch fish, and you can only take black bass over 15 inches, that doesn’t mean someone without a license can take smaller fish.
In other illegal spying news, the White Temple is letting a few of the laity into the inner sanctum:
Under pressure from some Congressional Republicans as well as Democrats, the White House abruptly changed its position on Wednesday and provided a closed-door briefing on the National Security Agency’s domestic surveillance program to the full House Intelligence Committee.
And Congressman James Sensenbrenner (R‑WI) released a letter full of excellent questions (thanks to TalkLeft):
- Do you agree that FISA “expressly prohibits” the specific activities authorized under this program?
- What is the rationale for authorizing a program to conduct surveillance in a manner that does not require prior judicial review by the FISA Court?
- What legal precedents, if any, support the Administration’s position that the September 14, 2001 AUMF directive to the President to use “all necessary and appropriate force against al Qaeda included the ability to authorize NSA intercepts of al Qaeda-related communications into and out of the United States?
and so forth. The questions are not gentle. The sleeping giant may be waking up.
A song of a little bird
A song that we never heard