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
Post" -- -- 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
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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