Posted on 12/21/2005 6:27:50 PM PST by NormsRevenge
WASHINGTON - The Bush administration's decision to sometimes bypass the secretive U.S. court that governs terrorism wiretaps could threaten cases against terror suspects that rely on evidence uncovered during the disputed eavesdropping, some legal experts cautioned.
These experts pointed to this week's unprecedented resignation from the government's spy court by U.S. District Judge James Robertson as an indicator of the judiciary's unease over domestic wiretaps ordered without warrants under a highly classified domestic spying program authorized by President Bush.
Neither Robertson nor the White House would comment Wednesday on his abrupt resignation from the Foreign Intelligence Surveillance Court, the little-known panel of 11 U.S. judges that secretively approves wiretaps and searches in the most sensitive terrorism and espionage cases. But legal experts were astonished.
"This is a very big deal. Judges get upset with government lawyers all the time, but they don't resign in protest unless they're really offended to the point of saying they're being misused," said Kenneth C. Bass, a former senior Justice Department lawyer who oversaw such wiretap requests during the Carter administration.
"This was definitely a statement of protest," agreed Scott Silliman, a former Air Force attorney and Duke University law professor. "It is unusual because it signifies that at least one member of the court believes that the president has exceeded his legal authority."
Robertson's surprise resignation added to a chorus of pointed questions in Washington over the propriety of the surveillance, which the White House said had successfully detected and prevented attacks inside the United States.
The chairman of the Senate Judiciary Committee, Arlen Specter, R-Pa., said he intends to begin oversight hearings in January to assess the stated justifications for the spying.
"When the attorney general says the force resolution gives the president the power to conduct these surveillances, I have grave doubts about that," Specter said.
Separately, the ranking Democrat on the House Intelligence Committee, Jane Harman of California, said she was informed about the program in 2003 and believes it is "essential to U.S. national security." But Harman also complained it was inappropriate for the White House to discuss the secret program only with leaders of the intelligence committees.
Rep. Peter Hoekstra (news, bio, voting record), R-Mich., the committee chairman, said he participated in at least six briefings on the spying program since August 2004. He said he is comfortable the surveillance was aimed at al-Qaida terrorists and people associated with al-Qaida inside the United States. Hoekstra also said lawmakers who were notified about the surveillance won't resign like Robertson.
"We all decided that we are going to stay, and we are going to keep our jobs," he said.
Under the spying program, secretly authorized by President Bush in October 2001, the National Security Agency was permitted to eavesdrop without a judge's approval on communications between suspected terrorists overseas and people inside the United States.
Officials have said they only performed such wiretaps when there was a reasonable basis to conclude that the conversation included a suspected terrorist and one party was overseas. Citing national security, officials have declined to say how many times they have done so.
A court-approved wiretap under traditional surveillance law requires a higher legal standard, demonstrating probable cause to the spy court that the target is an agent of a foreign power, such as a terrorist group. That law also says no such wiretaps can be performed except under its provisions.
Since the 2001 attacks on New York and Washington, the government has focused on preventing and disrupting attacks rather than building court cases against suspected terrorists. But experts cautioned that future legal prosecutions could be tainted if evidence was uncovered about a terror plot using a wiretap determined to be improper.
"Imagine if there is evidence critical to a criminal prosecution and the defendant challenges the evidence because it is constitutionally suspect," said Beryl Howell, former general counsel for the Senate Judiciary Committee. "It could jeopardize any criminal case."
But no-one ever resigned over what Bubba was up to.
Go figure.
Okay who is this guy U.S. District Judge James Robertson......???
1994 Clinton appointee
Robertson, James
Born 1938 in Cleveland, OH
Federal Judicial Service:
U. S. District Court for the District of Columbia
Nominated by William J. Clinton on September 14, 1994, to a seat vacated by George H. Revercomb; Confirmed by the Senate on October 7, 1994, and received commission on October 11, 1994.
Education:
Princeton University, B.A., 1959
George Washington University Law School, LL.B., 1965
Professional Career:
United States Navy Lieutenant, 1959-1964
Private practice, Washington, DC, 1965-1969
Chief counsel, Lawyers Committee for Civil Rights Under Law, Jackson, Mississippi, 1969-1970
National director, Lawyers Committee for Civil Rights Under Law, Washington, DC, 1970-1972
Private practice, Washington, DC, 1972-1994
Race or Ethnicity: White
Gender: Male
Ah Haa! He had his own little STAR CHAMBER™ going on http://www.mcsm.org/secretmeeting.html
Exactly what the pro-terrorists MSM and Democrats were hoping for...
I don't think evidence gathered against a US Citizen using this method would be admissible in court. You might be able to say that there is no expectation of privacy on an international call.
If the only tool you have is a hammer, everything looks like a nail.
Perhaps we should be satisfied that if we prevent a devastating attack using the President's wartime powers, the legal mopping up operation will be messy. It will not mean that lives weren't saved and that the right thing wasn't done. We are having trouble prosecuting Massouwi, but he didn't get on another airplane.
Please read post #7 Link, Am I crazy? This the same guy?
After this got leaked, Rep Harman thinks the Administration didn't tell ENOUGH people????
Click the link at #7
During our tenure the Department learned that a Vietnamese citizen in the United States was sending packages to Paris through a courier who happened to be a CIA agent. In Paris the documents were delivered to an official of the Vietnamese government. We were asked to approve a warrantless search of one of the packages. On the basis of the information then available to us, we declined to advise the Attorney General that we should invoke the foreign intelligence exception and engage in warrantless physical searches of the packages if there was a reasonable expectation of privacy. We did, however, conclude that the specific package in the courier’s possession was not protected by any reasonable privacy expectation and a search even in the context of a criminal investigation would not require a warrant. We thus authorized the courier to open the package and inspect its contents. That inspection revealed that classified government documents were indeed being transferred to a Vietnamese official in Paris. On the basis of that information and other investigations, we subsequently advised the Attorney General to obtain the President’s personal approval of subsequent searches of packages that were, in our opinion, protected by a reasonable expectation of privacy.
For more, see:
http://www.fas.org/irp/congress/2002_hr/091002bass.html
And yet I've read on this very forum of lots of judges who say that this is entirely legal.
Clintonista who tried to throw out Web Hubbell's cases.
Great quote here: Old Arkansas media hand Paul Greenberg has long had Robertson's number. In a 1999 column for Jewish World Review, Greenberg described the honorable judge as "one of the more prejudiced Clintonoids on the bench."
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