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Now Judges Are Leaking
National Review ^ | 01-05-06 | Andrew C. McCarthy

Posted on 01/05/2006 4:59:50 PM PST by smoothsailing

January 05, 2006, 3:59 p.m.

Now Judges Are Leaking

FISA judges discuss NSA surveillance with the Washington Post.

On Thursday morning, the Washington Post published an article ("Surveillance Court Is Seeking Answers — Judges Were Unaware of Eavesdropping") that is jaw-dropping in the matter-of-factness with which reports on an outrageous impropriety by at least two FISA court judges.

The backdrop is that of the eleven judges who sit on the special court created by the 1978 Foreign Intelligence Surveillance Act, only one, Chief Judge Colleen Kollar-Kotelly, was briefed by administration officials about the NSA's warrantless eavesdropping program prior to its exposure last month by the New York Times. At least some of the other judges are upset about this. Consequently, the administration has evidently agreed to brief the full court next Monday.

The paragraph that will be stunning to litigators and honorable federal judges (who, fortunately, constitute the vast majority of the bench) is the following:

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.

This is eye-popping on several different levels.

First of all, judges speaking to the press regarding matters that may end up in litigation is always a major impropriety, regardless of what kind of matters are involved. Canon 3 of the federal Code of Judicial Conduct expressly admonishes: "A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge's direction and control." This is so elementary to fairness and impartiality — the hallmarks of the judicial function — that it is almost surprising to find a rule about it.

But let's leave that aside for a second. These are the judges of the FISA court. Of the hundreds of federal judges in the United States, there are, as already noted, less than a dozen specially chosen for these weighty responsibilities. They are selected largely because they are thought to be of unquestionable rectitude, particularly when it comes to things like leaking to the press.

To find federal FISA court judges leaking to the Washington Post about an upcoming closed meeting with administration officials about the highest classified matters of national security in the middle of a war is simply shocking.

Even more mind-blowing, though, is to find them discussing what they see as the merits of the issue. Without having heard any facts or taken any submissions on the governing law — and in the cowardice of anonymity — here they are speculating for the media about what positions they might take depending on how the administration answers their questions. Here they are preliminarily weighing in on the validity of defense claims in cases where FISA evidence was introduced. This is an inexplicable judicial misconduct.

If a judge pulled a stunt like this in a run-of-the-mill criminal case, it would be grounds for his removal. To have FISA court judges doing it is astounding. The administration would be well within its rights to decline to provide the briefing the FISA court has asked for — at least until the judges who spoke anonymously to the press come forward and explain themselves (if there can be any explanation for this).

A major problem of the whole FISA enterprise is the questionable constitutionality (not to mention the wisdom) of Congress's delegating judges — who have no particular expertise by virtue of being judges — to exercise what are executive-branch national-security powers.

Regardless of what you think of FISA, though, judges who leak anonymously to the press on matters of this nature are unfit to sit on a national-security court.

— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.    

http://www.nationalreview.com/mccarthy/mccarthy200601051559.asp    


TOPICS: Constitution/Conservatism; Crime/Corruption; Extended News; Foreign Affairs; Government; News/Current Events; Philosophy; War on Terror
KEYWORDS: americahaters; badjudges; blackrobedthugs; clintonoidjudges; democraticagenda; demorats; dingbats; fisa; hanoijohnny; homelandsecurity; ichabodcrane; judges; kollarkotelly; leaks; lurch; moonbats; nsa; outofcontroljudges; pantyonheadtorture; patriotleak; spying; terrorprotectors; unfit

1 posted on 01/05/2006 4:59:51 PM PST by smoothsailing
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To: smoothsailing

I wish I could say I was speechless.....


2 posted on 01/05/2006 5:02:17 PM PST by mystery-ak (End Freepathons, become a monthly donor...)
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To: smoothsailing

Glorified ambulance chasers sticking their big fat noses where they don't belong in a time of war----up the a**es of some hack reporters and Rat politicians.


3 posted on 01/05/2006 5:04:10 PM PST by wolf24 (Rat 2006 Slogan: "Impeach Bush for listening to conversations between terrorists!")
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To: smoothsailing

Depends


4 posted on 01/05/2006 5:06:36 PM PST by ChessExpert (We gave peace a chance in SE Asia: 3 million murdered)
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To: smoothsailing

This is stunning. The notorious Rockefeller Memo is now in full swing; the left is now "all in" on this NSA Spy Stuff as their ticket to win elections. The left in this country is now not only certifiably crazy; they're dangerous - to us all.


5 posted on 01/05/2006 5:08:09 PM PST by antonico
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To: mystery-ak

Mark Levin had McCarthy on his show tonight talking about this very thing...

I don't understand why President Bush, Frist and Hastert, Blunt...don't stand up right now...and say that any "hearings" would be tainted by the very people that are involved...because of THEIR leaks to the press...

END OF HEARINGS


6 posted on 01/05/2006 5:10:29 PM PST by Txsleuth (Official Snow Flake!)
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To: smoothsailing
Now Judges Are Leaking

This should take care of it:


7 posted on 01/05/2006 5:10:32 PM PST by freedumb2003 (American troops cannot be defeated. American Politicians can.)
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To: ChessExpert
Sen. Leahy must have gotten a good deal at "Big Lots" and he's sharing them with his friends.
8 posted on 01/05/2006 5:12:01 PM PST by smoothsailing
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To: Txsleuth

Yes, I listened to Mark and Andrew....I would like the names of these judges....


9 posted on 01/05/2006 5:12:40 PM PST by mystery-ak (End Freepathons, become a monthly donor...)
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To: smoothsailing
The more I see, the more it looks as if most of the people in these elevated positions are totally incompetent. So few seem to have any real knowledge of what the hell is going on.
If any of these judges had any concerns about not being fully aware of what they might be required to make decisions on within the FISA process, surely you would think they long ago would have been on a phone or written formal letters to appropriate FISA management to fully brief them.
This all has to be a liberal establishment planned charade, or else something is terribly wrong with their basic competence levels.
I suspect the latter is the case. But does this mean all twelve judges happen to be liberal conspirators.
10 posted on 01/05/2006 5:15:54 PM PST by Marine_Uncle (Honor must be earned)
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To: Txsleuth

I don't understand why President Bush, Frist and Hastert, Blunt...don't stand up right now...and say that any "hearings" would be tainted by the very people that are involved...because of THEIR leaks to the press...

END OF HEARINGS


Because Hillary has Hastert's and Frist's testicles in her Testicle Lockbox.

As a co-equal branch of govenment, the Congress should march those judges up to the hill and expose them publically as leakers and impeach them. They are not above the law in case they forgot.



11 posted on 01/05/2006 5:16:01 PM PST by The South Texan (The Democrat Party and the leftist (ABCCBSNBCCNN NYLATIMES)media are a criminal enterprise!)
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To: Txsleuth
Agreed.

No hearings, no "whistleblowers" getting congressional immunity.

And as McCarthy says in this article, President Bush should cancel the briefing of FISA judges until and unless they explain their treachery.

12 posted on 01/05/2006 5:17:48 PM PST by smoothsailing
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To: smoothsailing

I cant believe we are wanting to create loopholes for as*holes(terrorists)...


13 posted on 01/05/2006 5:18:37 PM PST by Echo Talon
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To: mystery-ak

I'm stunned at the hubris of these judges .. if the "Chief Judge Colleen Kollar-Kotelly, was briefed" .. that's all that was necessary. The other judges were not going to "rule" on anything to do with the NSA program - THEY DIDN'T HAVE A NEED TO KNOW.

These people are just pitiful. They are the reason why the President kept it a SECRET program because these idiots cannot keep their big mouths shut!


14 posted on 01/05/2006 5:21:55 PM PST by CyberAnt ( I believe Congressman Curt Weldon re Able Danger)
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To: smoothsailing

As far as I know, "judges" can still be sent to prison for treason against the U.S. It's time for us to get busy and start sending them. I know Bubba would love to have one of these "judges" as a "cellmate."


15 posted on 01/05/2006 5:25:07 PM PST by FlingWingFlyer (We did not lose in Vietnam. We left.)
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To: CyberAnt

They are the reason why the President kept it a SECRET program because these idiots cannot keep their big mouths shut!


Exactly.....Apparently not too many people can keep a secret, and if they can't they should not be in a position to hear them...


16 posted on 01/05/2006 5:25:39 PM PST by mystery-ak (End Freepathons, become a monthly donor...)
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To: smoothsailing

The more information we get about the goings on in Washington DC with these pinheads who think they are so special makes me learn to care less if terrorist nuke the place.

Or New York. Or San Fransisco. Or Hollywood. Or...


17 posted on 01/05/2006 5:28:10 PM PST by Fledermaus (Please explain the difference between Al-Qaeda and the Left? Anyone? Anyone?)
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To: Marine_Uncle
This is an all-out assault on the Executive Branch coming from many quarters, these judges just being the latest manifestion.

It appears so far that maybe 3 or 4 former FISA judges are involved.That guy who stepped down recently (Robertson?) or more likely was forced out has got to be one of them.

IIRC, the FISA court currently is composed of 11 judges, but until the President knows who is stabbing him in the back, he should cancel his planned briefing of the current court.

18 posted on 01/05/2006 5:29:44 PM PST by smoothsailing
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To: smoothsailing
"This is an all-out assault on the Executive Branch coming from many quarters, these judges just being the latest manifestion."
I started my reply with similiar wording, then deleted all and took the approach regarding a possible total incompetence being the culprit, well knowing I probably misjudged the judges. As you indicated. It is a put up job in the continueing assults on the POTUS. They hate him with a vengence.
19 posted on 01/05/2006 5:37:45 PM PST by Marine_Uncle (Honor must be earned)
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To: mystery-ak

"Apparently not too many people can keep a secret, and if they can't they should not be in a position to hear them."


Exactly! When I got my "TOP SECRET" clearance - the buzz word was "need to know". There were only 2 people in my whole office who knew I had the clearance - and one of them was the president of the company - because he was the person I had to deliver the "top secret" messages to.

But .. these dems don't care about "need to know" - they believe they are entitled to know everything. These people are just getting so tiresome!


20 posted on 01/05/2006 5:41:10 PM PST by CyberAnt ( I believe Congressman Curt Weldon re Able Danger)
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To: Peach; Mo1

disgusted ping


21 posted on 01/05/2006 5:44:48 PM PST by prairiebreeze (Take the high road. You'll never have to meet a Democrat.)
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To: prairiebreeze; All

...*These*....*Frigging*....*Traitors!*...

They all need to get dead!

Presidential Order Time: To the Direct Action
Teams Boys & Girls...Roll Out! Save our country
from it's internal enemies!


22 posted on 01/05/2006 5:55:39 PM PST by Baby Driver
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To: smoothsailing


Thanks for posting this thread and pinging me -

I heard Mark Levin with Andrew McCarthy earlier tonight


I also hear Mark play Lee Greenwood singin "God Bless The USA" afterwards

Mark Levin and his producer read Free Republic threads and your posts

Let Mark know how much you appreciate him

He is on 6pm-8pm M-F at WABC 770am NYC and nationally syndicated - Mark was in the Ronald Reagan DOJ

El Rushbo brought him to national prominence as his guest "F. Lee Levin"

As for David "Lord Haw-Haw" Letterman at CBS -

Recall all the times when Letterman has brought on US sailors on NYC shoreleave - and our Army. Air Force, and Marines - to help Davis's ratings by helping him do his "Top 10" routines?

"I support out troops - but why are you running down Cindy Sheehan?" - Letterman to O'Reilly

To do what David?

Give out food in New Orleans?

Build roads in Haiti?

Get ambushed in Somalia?

=

Letterman better keep up his running

I was a miler and sprinter too - and if I see him in NYC or CT I will run his butt down and teach him what "the troops" think of traitors
















23 posted on 01/05/2006 6:03:27 PM PST by devolve (<-- (-in a manner reminiscent of Senator Gasbag F. Kohnman-)
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To: smoothsailing

Suspend every one of the judges until the ones who leaked admit it. Prosecute them for violating their security clearances. Appoint replacements for the whole damn court in the mean time. Judges who understand the role the president plays in defending this country.


24 posted on 01/05/2006 6:09:06 PM PST by No Longer Free State (No event has just one cause, no person has just one motive, no action has just the intended effect)
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To: smoothsailing
If Congress took it's power seriously it would start impeachment hearings against these 12 judges and then restock the court with qualified and chastened candidates.

Unfortunately, Congress is a group of idiotic cretins more worried about reelection and their own personal power to ever really worry about the fate of the nation.

25 posted on 01/05/2006 6:12:22 PM PST by metalurgist (Death to the democrats! They're almost the same as communists, they just move a little slower.)
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To: smoothsailing

Somebody needs to go to jail over this flap so that the rest of them finally get the message that they are aiding and abetting the enemy in time of war.

wait....


26 posted on 01/05/2006 6:15:27 PM PST by Bean Counter (Stout Hearts!!)
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To: Bean Counter

Let's all face it, the left...whether they be politicians, journalists, garden variety radical assholes, or judges do not take seriously that there is a war on terror or a threat to the U.S. that is serious enough to put their politcal rant to the side. But, in keeping with their 24/7 politics will be the first to blame the Administration should we get hit again.
Is this sick, or what?


27 posted on 01/05/2006 6:28:12 PM PST by AlphaOneAlpha
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To: smoothsailing
Time for the HOUSE to IMPEACH those Judges!!!!

Time for the Senate to CONVICT those Judges!!

28 posted on 01/05/2006 6:31:27 PM PST by PISANO (We will not tire......We will not falter.......We will NOT FAIL!!! .........GW Bush [Oct 2001])
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To: Bean Counter
Someone needs to go to jail...

Agreed. But not just some party hack or staff flunky.It's needs to be many people, and some who are well known to the general public.

I wouldn't mind seeing Jay Rockefeller leading the march of the frogs.

29 posted on 01/05/2006 6:42:39 PM PST by smoothsailing
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To: smoothsailing
If only somebody in the GOP had the guts to push for impeachment of corrupt judges.
Sometimes I hate being registered with (and donating to!) the wimp party.
30 posted on 01/05/2006 6:43:21 PM PST by Lancey Howard
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To: smoothsailing

"I wouldn't mind seeing Jay Rockefeller leading the march of the frogs."


Roger that! Jay has been playing awfully fast and loose in all of this, but I think there may be bigger fish involved. Time will tell. On the other hand, when was the last time that a sitting US Senator was indicted for something like this?

In the meantime, if the Rebublicans are smart, they will start acting like thay have at least one pair between them all and start holding some people accountable.


31 posted on 01/05/2006 6:54:49 PM PST by Bean Counter (Stout Hearts!!)
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To: All

There is another possibility....the Washington Post is just making this up and they never talked to any judges.

What prevents them from just making up whatever lie they want and claiming it came from an "un-named source", thier "ethics" ????. I think it is just a little to convenient that every "unnamed source" tends to support whatever the Democratic Party talking point of the day is.


32 posted on 01/05/2006 6:57:37 PM PST by Jonah Johansen ("Comming soon to a neighborhood near you")
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To: smoothsailing

There is a precedent for this. I believe it was Abe Fortas that use to make late nite visits to the Whitehouse to "leak" to LBJ.


33 posted on 01/05/2006 6:59:46 PM PST by cynicom
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To: mystery-ak
Screw these FISA judges and their self-important selfishness in talking to the LameStream Media!

All the proof I needed that Bush needs to use whatever means he can--without some black robed jackasses approval--came on September 11, 2001:


34 posted on 01/05/2006 7:02:46 PM PST by Recovering_Democrat ((I am SO glad to no longer be associated with the party of Dependence on Government!))
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To: devolve; All
My pleasure,d.

Mark Levin is truly one of the good guys.

His Landmark Legal Foundation is fighting the good fight for conservative principles.

35 posted on 01/05/2006 7:07:20 PM PST by smoothsailing
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To: Lancey Howard
I know what you mean.I stopped donating to the RNC. My money is targeted now to specific candidates, and I don't give a dime to incumbents.
36 posted on 01/05/2006 7:15:59 PM PST by smoothsailing
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To: smoothsailing
In an all day session before this Very Secret intelligence committee, Richard Clarke stressed over and over that secrecy was of the utmost importance and all members of the Intelligence Community have a responsibility to maintain this Secrecy.

Clarke then spoke of when he first received "this extraordinary responsibilty". Despite how we might feel about his testimony in the 9-11 hearings, from this dissertation on the FISA site, you could tell from what he said that maintaining this "Secrecy" was uppermost in his mind in all his dealings and that he did not violate it at any time.

37 posted on 01/05/2006 7:18:34 PM PST by Sacajaweau (God Bless Our Troops!!)
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To: cynicom
There is a precedent for this.

Not much.It would be a closer "precedent" if Abe Fortas was "leaking" to the Washington Post in an attempt to undermine national security and harm the Johnson administraton.

38 posted on 01/05/2006 7:26:04 PM PST by smoothsailing
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To: freedumb2003
Don't you really mean this?


39 posted on 01/05/2006 7:56:20 PM PST by ApplegateRanch (Islam: a Satanically Transmitted Disease, spread by unprotected intimate contact with the Koranus.)
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To: smoothsailing
IIRC, the FISA court currently is composed of 11 judges, but until the President knows who is stabbing him in the back, he should cancel his planned briefing of the current court.

I agree, but once he does find out, I'd like to see some quick retribution. This is way out of control.

40 posted on 01/05/2006 10:13:24 PM PST by writer33 (Rush Limbaugh walks in the footsteps of giants: George Washington, Thomas Paine and Ronald Reagan.)
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To: prairiebreeze

Does EVERYBODY need their 15 minutes of fame?


41 posted on 01/06/2006 3:57:07 AM PST by Peach
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To: smoothsailing

They are trying to make Bush look like Ahab. But instead of a single whale we have scads of islamocrazies running about committing acts of brutality the left is completely willing to ignore to reacquire power.


42 posted on 01/06/2006 4:04:45 AM PST by steveyp
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To: smoothsailing

BTTT.


43 posted on 01/07/2006 5:20:07 AM PST by mewzilla (Property must be secured or liberty cannot exist. John Adams)
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