Secret Court's Judges Were Warned About NSA Spy Data (Shhhhh...it's a secret)

Washington Post ^ | 2/8/06 | Carol D. Leonnig

[frankjr]

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.

The two heads of the Foreign Intelligence Surveillance Court were the only judges in the country briefed by the administration on Bush's program. The president's secret order, issued sometime after the Sept. 11, 2001, attacks, allows the National Security Agency to monitor telephone calls and e-mails between people in the United States and contacts overseas.

Yet another problem in a 2005 warrant application prompted Kollar-Kotelly to issue a stern order to government lawyers to create a better firewall or face more difficulty obtaining warrants.

The two judges' discomfort with the NSA spying program was previously known. But this new account reveals the depth of their doubts about its legality and their behind-the-scenes efforts to protect the court from what they considered potentially tainted evidence. The new accounts also show the degree to which Baker, a top intelligence expert at Justice, shared their reservations and aided the judges.

[AmishDude]

Truly I wouldn't be at all surprised to discover some of these leaks are very, very profitable for the leaker. Sure would love to see that come to light.

I have an unnamed source that says that the leaker is Sen. Rockafeller and moreover, the good Senator, if he were a sheepherder in Wyoming, wouldn't find solace in his fellow herder, if you know what I'm saying.

[oceanview]

"...Kollar-Kotelly to issue a stern order to government lawyers to create a better firewall or face more difficulty obtaining warrants"

as I said, this was one issue the 9-11 commission got right - the FISA court is a roadblock.

[onyx]

I've just returned home from work on our neighborhood's Mardi Gras float, and want to thank you for your post.

I'm in total agreement with you regarding Webb's entry into the senate race against George Allen. I think Allen will have a tough time of it --- what with his state electing that democrat governor with the Alan Colmes "look."

[Ernest_at_the_Beach]

Thanks for the ping!.... Hugh Hewitt blog is posting some comments on this and interviewing some legal folks. First comment here:

One Judge and the National Security
by Hugh Hewitt

Second here:

U.S. District Court Judges Royce Lamberth and Colleen Kollar-Kotelly, Part 2
by Hugh Hewitt
February 9, 2006 09:09 AM PST

Third here:

Judges Royce Lamberth and Colleen Kollar-Kotelly, Part 3
by Hugh Hewitt
February 9, 2006 04:59 PM PST

*************** From the Blog *************************

I interviewed Professor Jonathan Adler of Case Western Reserve University School of Law, Professor Erwin Chemerinsky of Duke Law School and Professor John Eastman of Chapman University Law School about the conduct of the two chief judges of the FISA court. All three are troubled by the allegations made in the Washington Post article.

Transcripts of these interviews will be posted at Radioblogger.com later in the day.

[Cboldt]

Just scanning through the links you provided. As to the criticism that Kotelly can't make the weighty decisions by herself, the article says that she is the only one "in the know," and that the administration deliberately restricts its information sharing.

In other words, "it's not her fault she was sworn to secrecy" and it's unfair to criticize her for keeping the secret.

The second piece raises a thought provoking question that amount to whether or not the NSA activity needs to be bootstrapped into legitimacy by a FISA warrant. It bumps into a question I've been wondering since December, "how is the information used?"

The third piece links to a transcript, which is where all the substantive discussion takes place.

EC: I think what it points to is we need the legislature to be doing this, not judges on their own doing this.

An interesting proposition too - but the administration seems reluctant to enage Congress as well, out of various concerns such as disclosure of procedures and methods, etc.

I see in short, that the administration seeks to justify self-management of the scope of surveillance.

Good links, thanks.

[onyx]

Place marking and thank you for the posting and the pingaling.

[Beckwith]

In other words, these DNC-hacks would rather see thousands of Americans slaughtered in the next 9/11 than allow a FISA warrant to be based in any way upon vital information obtained by the NSA.

But then they can blame Dubya and call for his impeachment. What's a few thousand fellow citizens if they can bring down the president.

[JoeGar]

According to government officials familiar with the program, the presiding FISA judges insisted that information obtained through NSA surveillance not form the basis for obtaining a warrant ...

Ever wonder why the FISA Court was bypassed?

[TeleStraightShooter]

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