FISA Judge Resigns

by hilzoy

From the Washington Post, under the headline "Spy Court Judge Quits In Protest":

"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 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.""

I'm just posting this quickly, since I'm not sure what it means. By an odd coincidence, he's the judge in the case of the Uighur detainees at Guantanamo. Would any of the lawyers present care to comment?

Comments

[DaveM]

Unless there are among your readers lawyers who have practiced before the FISA courts or Judge Robertson, I'm not sure this one needs specialized legal analysis. It looks like a pretty straightforward protest resignation. I have a feeling there will be additional information forthcoming from Judge Robertson or from other anonymous sources.

[Pooh]

From what I understand, calling FISC a "Court" is a misnomer in the common perception of the word. The judges seem more analogous to magistrates than black-robed gavel-bangers. (What a great name for either a jam band or an IM broomball team...)

[Ugh]

Also note that the warrantless NSA spying program has picked up purely domestic conversations.

General Hayden needs to brush up on his "physics."

[Ugh]

he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants.

Huh. Warrantless surveillance turns up information X, which is then incorporated to a request for a warrant from the FISA court, which then might get them around the fruit from a poisonous tree doctrine (though I'm no expert on admissible evidence, just had one class in law school). Potemkin court indeed.

Just a few short steps from their to using such info to get a warrant from a regular court.

[LizardBreath]

While I am a lawyer, I don't know much about this stuff offhand, but I'd say Ugh has it. The judge is worried that the government will acquire information from a warrantless wiretap, and present it to the FISA court (concealing the fact that they got the information from a warrantless wiretap) as the probable cause for getting a warrant to eavesdrop on the same parties. At that point, the whole warrant requirement becomes empty.

[cleek]

Just a few short steps from their to using such info to get a warrant from a regular court.

why bother? at that point, they can just declare the persons "enemy combatants" and have them shipped off for an open-ended stay in sunny Cuba.

[Lex]

The original Times article raised the possibility that illegally obtained info might have been included in affidavits filed with requests for warrants. It also raised the even more intriguing possibility that some Justice Department attorney seeking warrants might have "misled the court" (read: perjured themselves) in seeking warrants so as to keep the existence of the unwarranted NSA wiretapping private.

I'd say those are lines of inquiry for any IC or congressional committee, as well as journalists, to pursue.

[CharleyCarp]

I don't disagree Lex, but I do hope we dont end up with another one of those punish-the-minions-for-following-the-policy deals.

[LizardBreath]

Well, there's something to be said for punishing the minions, pour les encouragement des autres. It's clear that they were acting under orders, but I don't see any reason not to make it clear to government lawyers that orders to perjure yourself? You obey at your own risk.

[CharleyCarp]

That's fair LB. I was thinking of the buck stopping at the first rung.

[cleek]

on the topic of national security leaks: Rove implicated in another leak...

[Lex]

I want the higher-ups held responsible, too, don't get me wrong. But frankly, one reason we're in this mess is that no minions did hard time after Iran-contra, so some of the same people were free to show up and cause trouble again during this administration.

[Barry]

And after Watergate, also. The only guys here who aren't three-timers are those who are too young to be. Which is frightening, because it suggests that any bright young things in this administration are strong candidates for Elder Evil, a few decades down the road.

[Gary Farber]

"And after Watergate, also."

Not so much. Lots of people went to jail from Watergate, from Attorny-General John Mitchell to Chief of Staff Bob Haldeman and on down. The ones who got off were those who were merely evil, but hadn't actually committed a crime, such as Buchanan. Or were hired after-the-fact.

Whereas in Iran-Contra, pretty much no one did time, between the pardons and the congressional-investigation get-out-of-jail-free card.

Who do you have in mind from Watergate who got off (keeping in mind, they have to have been guilty of an actual criminal offense, not a moral offense)? (Guilt-by-association doesn't work.)

Could you maybe, please, name three names? (More is fine.)

[bob mcmanus]

"Who do you have in mind from Watergate who got off (keeping in mind, they have to have been guilty of an actual criminal offense, not a moral offense)? (Guilt-by-association doesn't work.)"

Those are your standards, not mine, Gary.

For example, I clearly have a visual memory of young Trent Lott sulking in the upper rows of the Special Committee, and I do believe he was a little more corrupt because of what he was asked to resist and defend.

There are hundreds in that category.

[liberal japonicus]

That's an interesting question, Gary. Keeping in mind our discussion about second acts, Nixon might be one name. Kissinger, though obviously whether he committed actual criminal offenses is arguable. Since Melvin Laird is being quoted for his expertise on Vietnam, his name, but again, the bar you set (as opposed to what Barry might be conceiving) is sadly pretty high when viewed from the gutter we find modern day politics lying in. Certainly the process by which someone is pardoned and then allowed to slowly re-enter the halls of power is getting to be a well worn path, and one wonders if, in 2025, we are going to be arguing over who lost Iraq and the usual suspects will be arguing that we never really gave the neo-con ideas a fair hearing. FWIW

[Gary Farber]

"Those are your standards, not mine, Gary."

Bob, here's the sequence:

But frankly, one reason we're in this mess is that no minions did hard time after Iran-contra, so some of the same people were free to show up and cause trouble again during this administration.

You agree:

And after Watergate, also.

I kinda think "doing hard time" wasn't some subjective standard I inserted into the conversation.

But probably you were just digressing slightly. I do that all the time. On the question of Trent Lott's moral corruption, I fully agree, with the note that it seems to me it began at least in his college years and the racism he showed there, which means that it really goes back to the racism he presumably drank up with mother's milk, as the saying goes (I have no particular knowledge of Mrs. Lott).

"Keeping in mind our discussion about second acts, Nixon might be one name."

I'm uninterested in finding it, but I said he had five acts; not that you in the least need agree, I'm justing pointing out that I already opined.

Laird's corruption, off the top of my head, was simply being another of the countless liars about Vietnam; he gets some of the largest blame, being one of the most senior officials involved in the constant lying that went on at least from Johnson's day. But he had no involvement in Watergate or anything like it.

"Certainly the process by which someone is pardoned and then allowed to slowly re-enter the halls of power is getting to be a well worn path...."

Well, you know, those pardons for Iran-Contra were pardons for being so patriotic, they had to break the law.

History supposed does it as farce the second time 'round. But the cliche is one I do believe, passionately. Which is why I shudder when people say "history is boring." (I understand the problems they have seeing otherwise, but that's not my point.)

[Gary Farber]

"You agree."

Sorry, I should have caught that, Bob.

[bob mcmanus]

Why did Judge Robertson resign? Really? Hypothetical question.

"Guilt by association" would be standing in the back row of the Socialist Workers meeting or signing the petition without reading it or simply voting for Nixon or GWB.

"Corruption by agency" is a question I have been dealing with my entire life. To start with the inverse, are Katherine and charleycarp and hilzoy slightly enobled personally by the missions they take on?

Are Gonzalez, and Yoo, and oh, lets just say Glenn Reynolds simply guns-for-hire who can put on an advocate's hat, defend people and policies they may not actually endorse or completely approve, take the hat off and not be personally corrupted by the process? Are tactics and methods critical, in other words, as long as they are not disingenuous or dishonest or otherwise unethical in their practice they are not corrupted by the corrupt causes?

I do not have a quick and easy answer. I do sometimes believe it is a tactic of the Bush administration to put its supporters in a position where they must defend the indefensible, tempting their defenders to disingenuous argumentation, or face exile and ostracism. While continually moving the bar of what needs be defended.

[liberal japonicus]

I'm uninterested in finding it, but I said he had five acts; not that you in the least need agree, I'm justing pointing out that I already opined.

Well, yes, you did, but if I understood your assertion, it was that Nixon was able to rehabilitate himself in some manner after Watergate, so Fitzgerald's aphorism was the "dumbest thing Fitzgerald said in his sad, drunken, life". But if Nixon was able to rehabilitate himself, that suggests that Barry has a point and shouldn't be subjected to the 'yeah, name three' treatment. If I misunderstood your point about Fitzgerald's comment or your objection to Barry's comment, my apologies.

Well, you know, those pardons for Iran-Contra were pardons for being so patriotic, they had to break the law.

I'm not sure if the reasons for the pardons are all that pertinent to the point of Barry's comment, and I wonder if it was actually admitted that they broke the law (as opposed to being the target of a power-mad prosecutor).

Bob's question does go right to the heart of the matter and I would be interested in seeing how others try to answer it, of course, not holding their answers against them. I appreciate that Gary wants to avoid guilt by association, but I agree with Bob that these don't tend to be a 'whoops, thought this was the Rotary club meeting' kind of mistakes. When I hear about Ollie North running for Congress or that G.Gordon Liddy is the hero of a comic book, I wonder WTF? Admittedly, there is a percentage greater than zero who can and will believe anything, but it still baffles me.

Which is why I've been sympathetic to Bob's suggestions here of late of scorched earth tactics by the democrats , though it seems that Bob has backed away a bit from that most recently.

And of course, our online personas can be quite a distance away from what we are in real life. Would I be able to be able to (imagining the unlikely chain of events that it would take to get me there) be able to snub Bush or would I end up echoing Obama's catchphrase about Bush being a good man who is just mistaken?

[bob mcmanus]

"...though it seems that Bob has backed away a bit from that [scorched earth eliminationism] most recently."

Outrage fatigue. Certain positive developments, like this revelation and scandal;Delay on trial;Abramoff;today's Senate defeats. Listening and taking seriously those with more political experience and wisdom than myself. They tell me Republicans aren't all gonna get raptured away, and the rest of y'all would miss em anyway.

Seasonal changes, we are now in dog-walking weather in Dallas. I found a nature conservancy with trails marked "Difficult" meaning my two 65 pounders pulling me up and down 100 foot cliffs for ten miles in two hours. Too tired to hate. I am my meanest in July, August, and September. My Mavericks are winning. I am a simple man.

And it's Christmas, dude! Or Hanukkah, or Solstice; or playoff and bowl time for those with serious spiritual inclinations. The solution to the "War on Christmas" is to officially re-orient the season around what's really important:Football

[lily]

I would snub Bush. In a heartbeat. I have daydreams about this.

[Gary Farber]

"I appreciate that Gary wants to avoid guilt by association,"

That's totally out of context. The context was "in determining who committed criminal acts and yet didn't get sent to jail."

"...but if I understood your assertion, it was that Nixon was able to rehabilitate himself in some manner after Watergate...."

No, that was someone else's point. I responded to alleged "rehabilitation" by saying I think it doesn't count as another "act" at all, compared to Nixon's actual comeback from losing the Vice-Presidency to winning the Vice Presidency. And then from losing the Presidential race and being dead in politcs to running for Governor as a candidate taken seriously as all. And then came back from the most infamous "farewell" political speech of the twentieth century, the famous "you won't have Nixon to kick around any more" (have people started to forget this?; doubtless so), to win the nomination and the Presidency, which is just unbelievable. But each of these was an unbelievable return from death.

That some people said some nice things at his funeral: yeah, whatever. On a scale of the previous, with getting the Presidency being 1000, with running for governor being an 800, and with saving his career via Checkers being also an 800, his funeral and obits rate a 1, in my book. If that's a "comeback," I have one every time I make it to the grocersy store.

I suspect we have different perspectives on this. :-)

"When I hear about Ollie North running for Congress or that G.Gordon Liddy is the hero of a comic book, I wonder WTF?"

The flip side are things like all the people who thought Martin Luthur King was a fornicating communist rabble-rousing n-word wondering why anyone not also a communist n-word would have a kind word for him. Or those mystified as to why anyone would like Michael Moore.

I don't think these are comparable cases, and neither do you, but they do. These are opposing iconographies, of course, and cheering for them is also a weapon against the values of the other side. Every person who cheers for Liddy or North takes joy that in doing so they are sticking it to the liberals.

"...though it seems that Bob has backed away a bit from that most recently...."

He does seem somewhat more subdued of late. But he explained: "Too tired to hate." Hi, Bob! Have a merry christmas if that's what you do; if not, a happy whatever you do.

[Gary Farber]

Stop that.

[ral]

As I write I am looking at my vinyl copy of the Begatting of the President, narrated by Orson Welles. It is an artifact of a bygone age, so old that there is no dated copyright notice on the record, though the album cover says 1969.

Did Nixon "rehabilitate himself?" (I can't help thinking of the "Group W bench"). I would say no -- he still had die-hard supporters and achieved some limited respectability but I have to agree with Gary (and disagree with the WikiPedia entry) -- it was nothing like what went before.

As for G. Gordon Liddy, hero of a comic book seems about right to me. Ollie ran (for the Senate) but was defeated. Sure, he makes a living on the right-wing circuit -- is that a surprise?

Merry Xmas to all and to all a good night.

[ral]

Another memory jogged: Milhouse, a White Comedy.

[liberal japonicus]

Apologies for missing the fun last night, I just wanted to return to this dead horse to clarify a point. I said "it was that Nixon was able to rehabilitate himself", but my point wasn't whether he was able to pull himself up by his bootstraps or if he was shoved out against his will into the limelight by his syncophantic admirers and he couldn't say no. The point is how did it happen at all? Why wasn't everything that associated with him was sealed in glass barrels and buried in the Nevada desert and a crack team of linguists was tasked with coming up with a langauge that would make sure that in 2000 years, people would still know not to dig there.

Perhaps I should take the spot Bob has vacated to keep it warm...