Sunday, June 24, 2007

Ex-Surveillance Judge Criticizes Warrantless Spying

A federal judge who used to authorize wiretaps in terrorism and espionage cases criticized yesterday President Bush's decision to order warrantless surveillance after the Sept. 11, 2001, attacks.

"We have to understand you can fight the war [on terrorism] and lose everything if you have no civil liberties left when you get through fighting the war," said Royce C. Lamberth, a U.S. District Court judge in Washington and a former presiding judge of the Foreign Intelligence Surveillance Court, speaking at the American Library Association's annual convention.

Lamberth, who was appointed to the federal bench by President Ronald Reagan, expressed his opposition to letting the executive branch decide on its own which people to spy on in national security cases.

The judge said it is proper for executive branch agencies to conduct such surveillance. "But what we have found in the history of our country is that you can't trust the executive," he said.

"The executive has to fight and win the war at all costs. But judges understand the war has to be fought, but it can't be at all costs," Lamberth said at the Washington Convention Center. "We still have to preserve our civil liberties. Judges are the kinds of people you want to entrust that kind of judgment to more than the executive." ...

Lamberth took issue with Bush's approach.

He said the special court, established by the Foreign Intelligence Surveillance Act, met the challenge of reacting quickly to the Sept. 11 attacks. Lamberth was stuck in a carpool lane near the Pentagon when a hijacked jet slammed into it that day. With his car enveloped in smoke, he called marshals to help him get into the District.

By the time officers reached him, Lambert said, "I had approved five FISA coverages [warrants] on my cellphone." He also approved other warrants at his home at 3 a.m. and on Saturdays.

"In a time of national emergency like that, changes have to be made in procedures. We changed a number of FISA procedures," Lamberth said.

Normal FISA warrant applications run 40 to 50 pages, but in the days after Sept. 11, the judge said, he issued orders "based on the oral briefing by the director of the FBI to the chief judge of the FISA court."

Lamberth would not say whether he thought Bush's warrantless surveillance was constitutional. "Judges shouldn't give advisory opinions, and I was never asked to give an opinion in court," he said.

But, he said, when the NSA briefed him about the program, he advised the agency to keep good records so that, if any applications came to the FISA court based on information obtained from the warrantless surveillance, the court could rule on the legality.

He said he never got such an application.

Lamberth defended the court against those who say it is rubber stamp and said if the government is working properly, most applications should be approved.

"We're making sure there's not some political shenanigan going on or some improper motive for the surveillance," Lamberth said. "The fact that they have to submit it to us keeps them honest."

Lambert also criticized FBI Director Robert Mueller for allowing the agents in charge of all 56 FBI field offices to approve National Security Letters. These allow agents to demand information from phone companies, Internet service providers and corporations without court warrants in national security cases.

The Justice Department's inspector general recently estimated there were 3,000 violations of law between 2002 and 2005 in the FBI's use of the letters.

"Once they saw how the field offices had screwed this all up, I thought that would be a good time to centralize the approvals" in one Washington office that could enforce the rules uniformly, Lamberth said. "Unfortunately, Mueller and (Attorney General Alberto) Gonzales did not do that."

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