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WASHINGTON — Five former judges on the nation's most secretive
court, including one who resigned in apparent protest over President
Bush's domestic eavesdropping, urged Congress on Tuesday to give the court
a formal role in overseeing the surveillance program.
In a rare glimpse into the inner workings of the secretive court, known
as the Foreign Intelligence Surveillance Court, several former judges who
served on the panel also voiced skepticism at a Senate hearing about the
president's constitutional authority to order wiretapping on Americans
without a court order. They also suggested that the program could imperil
criminal prosecutions that grew out of the wiretaps.
Judge Harold A. Baker, a sitting federal judge in Illinois who served
on the intelligence court until last year, said the president was bound by
the law "like everyone else." If a law like the Foreign Intelligence
Surveillance Act is duly enacted by Congress and considered
constitutional, Judge Baker said, "the president ignores it at the
president's peril."
Judge Baker and three other judges who served on the intelligence court
testified at a Senate Judiciary Committee hearing in support of a proposal
by Senator
Arlen Specter, Republican of Pennsylvania, to give the court formal
oversight of the National Security Agency's eavesdropping program.
Committee members also heard parts of a letter in support of the proposal
from a fifth judge, James Robertson, who left the court last December,
days
after the eavesdropping program was disclosed (picture: Beverly
Rezneck/Polaris).
The intelligence court, created by Congress in 1978, meets in a tightly
guarded, windowless office at the Justice Department. The court produces
no public findings except for a single tally to Congress each year on the
number of warrants it has issued — more than 1,600 in 2004. Even its
roster of judges serving seven-year terms was, for a time, considered
secret.
But Mr. Bush's decision effectively to bypass the court in permitting
eavesdropping without warrants has raised the court's profile. That was
underscored by the appearance on Tuesday of the four former FISA judges:
Judge Baker; Judge Stanley S. Brotman, who left the panel in 2004; Judge
John F. Keenan, who left in 2001; and Judge William H. Stafford Jr., who
left in 2003. All four sit on the federal judiciary.
At a hearing lasting more than three hours, the former FISA judges
discussed in detail their views on the standards of proof required by the
court, its relations with the Justice Department, and the constitutional,
balance-of-power issues at the heart of the debate over the N.S.A.
program. The agency monitored the international communications of people
inside the United States believed to be linked to
Al Qaeda.
The public broadcasting of the court's business struck some court
watchers as extraordinary. "This is unprecedented," said Magistrate Judge
Allan Kornblum, who supervised Justice Department wiretap applications to
the court for many years and testified alongside the four former judges.
But the most pointed testimony may have come from a man who was not at
the hearing: Judge Robertson.
A sitting federal judge in Washington, Judge Robertson resigned from
the intelligence court just days after the N.S.A. program was disclosed.
Colleagues say he resigned in frustration over the fact that none of
the court's 11 judges, except for the presiding judge, were briefed on the
program or knew of its existence. But Judge Robertson has remained silent,
declining all requests for interviews, and his comments entered into The
Congressional Record on Tuesday represented his first public remarks on
the controversy.
In a March 23 letter in response to a query from Mr. Specter, the judge
said he supported Mr. Specter's proposal "to give approval authority over
the administration's electronic surveillance program" to the court.
The Bush administration, in its continued defense of the program,
maintains that no change in the law is needed because the president has
the inherent constitutional authority to order wiretaps without warrants
in defense of the country.
Mr. Specter's proposal seeks to give the intelligence court a role in
ruling on the legitimacy of the program. A competing proposal by Senator
Mike DeWine, Republican of Ohio, would allow the president to authorize
wiretaps for 45 days without Congressional oversight or judicial approval.
Judge Robertson made clear that he believed the FISA court should
review the surveillance program. "Seeking judicial approval for government
activities that implicate constitutional protections is, of course, the
American way," he wrote.
But Judge Robertson argued that the court should not conduct a "general
review" of the surveillance operation, as Mr. Specter proposed. Instead,
he said the court should rule on individual warrant applications for
eavesdropping under the program lasting 45 or 90 days.
Acknowledging the need for secrecy surrounding such a program, he said
the FISA court was "best situated" for the task. "Its judges are
independent, appropriately cleared, experienced in intelligence matters,
and have a perfect security record," Judge Robertson said.
He did not weigh in on the ultimate question of whether he considered
the N.S.A. program illegal. The judges at the committee hearing avoided
that politically charged issue despite persistent questioning from
Democrats, even as the judges raised concerns about how the program was
put into effect.
Judge Baker said he felt most comfortable talking about possible
changes to strengthen the foreign intelligence law. "Whether something's
legal or illegal goes beyond that," he said, "and that's why I'm shying
away from answering that."
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