U.S. judge takes Bush to task over warrantless surveillance

A federal judge who used to authorize wiretaps in terrorism and espionage cases criticized President Bush’s decision to order warrantless surveillance after the Sept. 11 attacks.

Washington District Judge Royce C. Lamberth said Saturday that it was proper for executive-branch agencies to conduct such surveillance, but that the executive should not decide alone whom to spy on in national security cases. The decision should be shared with the judiciary, he said.

“What we have found in the history of our country is that you can’t trust the executive,” he said at the American Library Assn.’s convention.

Lamberth, who was appointed to the federal bench by President Reagan, was named chief of the Foreign Intelligence Surveillance Court in 1995 by then-Chief Justice William H. Rehnquist. Lamberth held that post until 2002.

The 1978 Foreign Intelligence Surveillance Act established the court after domestic spying scandals in the 1970s.

The court meets in secret to review applications from the FBI, the National Security Agency and other agencies for warrants to wiretap or search the homes of people in the United States in terrorism or espionage cases. Each application is signed by the attorney general. The court has approved more than 99% of them.

Shortly after the Sept. 11 attacks, Bush authorized the NSA to spy on calls between people in the United States and terrorism suspects abroad without warrants from the surveillance court.

The administration said it needed to act more quickly than the court could and that the president had inherent authority under the Constitution to order warrantless domestic spying.

Bush put the spying program under the surveillance court’s supervision this year, after the program became public and was challenged in court.

The president still claims the power to order warrantless spying.

White House spokesman Tony Fratto said Bush believes in the program, which is classified. The program is lawful, limited and safeguarded, Fratto said, and “specifically designed to be effective without infringing Americans’ civil liberties.”

Lamberth took issue with Bush’s approach.

“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 surveillance court met the challenge of acting quickly after Sept. 11. Lamberth was stuck in a carpool 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 to the District of Columbia. By the time they arrived, “I had approved five FISA coverages [warrants] on my cellphone,” Lamberth said. He also approved other warrants at his home at 3 a.m. and on Saturdays.

Lamberth would not say whether he thought Bush’s warrantless surveillance was constitutional.

“Judges shouldn’t give advisory opinions, and I was never asked to give an opinion in court,” he said.