Inconvenient News,
       by smintheus

Tuesday, June 26, 2007

  FISA Judge blows the whistle on illegal wiretaps

Almost unnoticed (as Karen Tumulty also recognized), what with so many political stories breaking this week, the former head of the FISA court lambasted the Bush administration's warrantless wiretap program in a speech on Saturday. Judge Royce Lamberth views the program as deeply threatening: "We still have to preserve our civil liberties," he said.

More remarkably still, Lamberth points out that Bush has lied about his reasons for circumventing the FISA court. Bush has claimed that he needed a new way to respond more quickly to breaking leads in terrorist investigations. But Lamberth states that the FISA court under his leadership did adopt new methods on Sept. 11, 2001 that permitted the issue of warrants extremely rapidly. So what was the real reason for ignoring the law, Mr. Bush?

From the AP report by Michael Sniffen:

Lamberth took issue with Bush's approach [the warrantless NSA spying].

"I haven't seen a proposal for a better way than presenting an application to the FISA court and having an independent judge decide if it's really the kind of thing that we ought to be doing, recognizing that how we view civil liberties is different in time of war," he said.

"I have seen a proposal for a worse way and that's what the president did with the NSA program."

Lamberth said the FISA court met the challenge of acting quickly after Sept. 11. Lamberth was stuck in a car pool 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 of Columbia.

By the time officers reached him, "I had approved five FISA coverages (warrants) on my cell phone," Lamberth said. 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 he said he issued orders in the days after Sept. 11 "based on the oral briefing by the director of the FBI to the chief judge of the FISA court."


Lamberth adds that he was briefed by the NSA about the warrantless program, and he warned the Agency that it would need to keep excellent records if the government ever wanted to apply to FISA for permission to use any such evidence in court. But when he retired from the FISA court in 2002, there had been no such applications from the administration.

Lamberth also had strong words about how the FBI has abused its warrantless National Security Letters, but that is an issue for another day.

Walter Pincus today has his own report on Lamberth's speech, emphasizing some of the same matters as Sniffen.

In the wake of the terrorist attacks of Sept. 11, 2001, the court shifted gears. "We changed procedures and put in all the orders from September 12 forward based on the oral briefing with the director of the FBI and the chief judge of the FISA court," Lamberth said. "The courts can respond in times of national crisis, and I think the courts have to, and we did."

One reason, he said, is that "if you move very quickly, that's when things are most productive, particularly in e-mails. As soon as an event happens, everybody is e-mailing everybody and you pick up the most productive tape."

Lamberth's defense of the court's speed and efficiency came after senior Bush administration officials said its procedures were too cumbersome to meet counterterrorism needs in the post-9/11 world, and created a system of warrantless wiretapping by the National Security Agency that did not include judicial review.

Taking direct aim at the administration's assertion, Lamberth noted that members of the court had approved almost 99 percent of the FISA applications presented.


It's a direct refutation of the Bush administration's only explanation for violating the 1978 FISA law. The House and Senate Judiciary and Intelligence Committees ought to ask Lamberth to testify on this matter, and soon.

Pincus adds another poignant comment from Lamberth, which highlights the excuses and evasions that Bush & Co. have offered about their failure to aggressively investigate al Qaeda's plotting before September 11.

Lamberth also talked about the summer of 2001, when, he said, "we knew from the intelligence we were gathering that we were going to be hit; we just didn't know when." But officials knew, he said, when "the first plane hit it was probably bin Laden, and when the second plane hit that it had to be bin Laden."


Seems to confirm the testimony of Richard Clarke, George Tenet, and others that Bush, Cheney, and Rice brushed aside dire warnings during the summer of 2001.

crossposted from Unbossed

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