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Surveillance Court Is Seeking Answers
Judges Were Unaware of Eavesdropping
By Carol D. Leonnig
Washington Post Staff Writer
01/05/06 "Washington
Post" -- -- The members of a secret federal
court that oversees government surveillance in espionage and
terrorism cases are scheduled to receive a classified briefing
Monday from top Justice Department and intelligence officials about
a controversial warrantless-eavesdropping program, according to
sources familiar with the arrangements.
Several judges on the Foreign Intelligence Surveillance Court said
they want to hear directly from administration officials why
President Bush believed he had the authority to order, without the
court's permission, wiretapping of some phone calls and e-mails
after the Sept. 11, 2001, attacks. Of serious concern to several
judges is whether any information gleaned from intercepts by the
National Security Agency was later used to gain their permission for
wiretaps without the source being disclosed.
The court is made up of 11 judges who, on a rotating basis, hear
government applications for surveillance warrants. But only the
presiding judge, currently Colleen Kollar-Kotelly, was notified of
the government eavesdropping program. One judge, James Robertson,
who also serves on the federal bench in Washington, resigned his
seat on the surveillance court in protest shortly after the
wiretapping was revealed by the New York Times in mid-December.
Kollar-Kotelly began pressing for a closed government briefing for
the remaining members of the court on Dec. 19, the day she learned
of Robertson's concerns. Other judges wanted to know, as Robertson
had, whether the administration had misled their court about its
sources of information on possible terrorism suspects.
Kollar-Kotelly had privately raised concerns in 2004 about the risk
that the government could taint the integrity of the court's work by
using information it gained via wiretapping to obtain warrants from
judges under the Foreign Intelligence Surveillance Act.
On Friday, an attorney for Seifullah Chapman, one of the men
convicted as part of the "Virginia jihad network," formally asked
federal prosecutors in Virginia to determine whether warrantless NSA
wiretaps were used to gain information about his client. Chapman,
who is serving a 65-year sentence for conspiring to provide material
support to a foreign terrorist group, was the subject of a secret
FISA warrant.
"My feeling is they are a very professional organization. They would
be equally concerned that my client's rights are protected, and
they'll want to find out themselves," said John Zwerling, Chapman's
attorney.
Some judges who spoke on the condition of anonymity yesterday said
they want to know whether warrants they signed were tainted by the
NSA program. Depending on the answers, the judges said they could
demand some proof that wiretap applications were not improperly
obtained. Defense attorneys could have a valid argument to suppress
evidence against their clients, some judges said, if information
about them was gained through warrantless eavesdropping that was not
revealed to the defense.
Yesterday, Rep. Jane Harman (Calif.), the ranking Democrat on the
House intelligence committee, sent a letter to Bush charging that
the limited nature of congressional briefings on the monitoring
program violated the National Security Act. The White House informed
the chairmen of the House and Senate intelligence oversight
committees and the two ranking Democrats about the program.
The National Security Act requires the president to keep all members
of the two committees fully informed of intelligence activities with
the exception of those conducted covertly overseas. "In my view,
failure to provide briefings to the full congressional intelligence
committees is a continuing violation of the National Security Act,"
Harman wrote.
Staff writer Dafna Linzer contributed to this report.
© 2006 The Washington Post Company
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