A federal judge who has criticized the Bush administration’s handling of the war on terrorism has resigned from a special court that has authority over approving electronic surveillance and searches of terrorism suspects, court officials confirmed Wednesday.
The move by Judge James Robertson came shortly after disclosures that the National Security Agency had been monitoring international phone calls and other communications of hundreds of Americans since Sept. 11 without seeking the approval of the Foreign Intelligence Surveillance Court. Robertson, who submitted his resignation from the 11-person tribunal Monday, continues to sit on the U.S. District Court here.
The Washington Post -- citing unnamed associates of the judge who were familiar with his decision to step down -- reported Wednesday that Robertson privately had expressed deep concern that the NSA surveillance program, which was personally authorized by President Bush in 2002, was legally questionable and may have tainted the court’s work.
Robertson has not spoken publicly about the reason for his resignation.
The New York Times’ disclosure of the spy program last week ignited a political firestorm, with charges that the administration skirted federal law in ordering domestic surveillance without judicial review. The disclosure has also focused attention on the secretive Foreign Intelligence Surveillance Court, which Congress created in 1978 as a check on the ability of the executive branch to collect intelligence inside the United States.
Bush said over the weekend that he had the power under the Constitution and under an authorization from Congress after Sept. 11 to conduct surveillance without court approval.
Robertson was appointed to the federal bench by President Clinton in 1994. He worked as a civil rights lawyer in Mississippi in the late 1960s and 1970s. Later, as a corporate lawyer in Washington, he helped launch a successful discrimination suit against the U.S. Drug Enforcement Administration on behalf of black narcotics agents.
Last year, in a rebuke to the Bush administration, he ruled that tribunals the Defense Department had established after Sept. 11 to try suspected terrorists violated military law and the Geneva Convention. The decision, reversed by an appeals court, is now before the U.S. Supreme Court.
One concern about the NSA eavesdropping program has been that the government may have used information obtained through the warrantless surveillance in subsequent applications to the court, introducing potentially illegally gathered evidence.
“He would not want the process to be compromised,” said a lawyer who knows Robertson well. “And it might be compromised by virtue of the fact that information coming to him might have been the result of these wiretaps that were not authorized by a court.”
The judges on the foreign-intelligence court weigh hundreds of requests from the government every year to collect information on suspected spies and terrorists in the United States. They receive no extra compensation for their service, and they are expected to continue their full-time jobs as federal district judges, sitting in cities across the country.
“It is a decision he made. I am very fond of him. I have great respect for him,” said George Kazen, a U.S. district judge in Laredo, Texas, who also sits on the foreign-intelligence court. “My own reaction is the same as any other citizen. The president has laid out a whole mini-brief. He has been told it is perfectly legal. I have not stopped to analyze that.”
Other judges on the court declined to comment or could not be reached.
Robertson was appointed to the FISA court by then-Chief Justice William H. Rehnquist. His term on the court was scheduled to expire in May.
Debate on the president’s spy program continued Wednesday on Capitol Hill, where key Republicans defended its skirting of the FISA court and the fact that the administration had briefed only a handful of lawmakers on the program.
House Intelligence Committee Chairman Rep. Peter Hoekstra (R-Mich.) said the administration’s decision to inform only a small number of congressional leaders was designed to protect a new technological capability of the National Security Agency.
“I think it’s fair to say that what you have is a highly compartmented program with what were perceived to be unique capabilities,” Hoekstra told reporters at a Capitol Hill briefing. “It’s essential that we do this, and we hope that we can keep it a secret,” he added.
Sen. Pat Roberts (R-Kan.), chairman of the Senate Intelligence Committee, said the government’s technical capabilities had made FISA court procedures obsolete.
Among those briefed on the spy program was Rep. Jane Harman (D-Venice), the House Intelligence Committee’s top Democrat, who said Wednesday that she approved of the program as it was described to her, but that she had new reservations.
“I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al Qaeda. I believe the program is essential to U.S. national security and that its disclosure has damaged critical intelligence capabilities,” Harman said. “Like many Americans, I am deeply concerned by reports that this program in fact goes far beyond the measures to target Al Qaeda about which I was briefed.”
Roberts suggested that Democrats who now say they either misunderstood the briefings or expressed objections at the time are being “disingenuous.”
“At no briefing did I ever hear any ... objections to this program,” Roberts said. “We have memory pills for people who have senior moments. We might have to have memory pills for certain members of Congress who have selective amnesia and see if perhaps ... we can jog their memory.”