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One Judge and the National Security

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This Washington Post account makes clear that U.S. District Court Judge Colleen Kollar-Kotelly, Chief Judge of the Foreign Intelligence Surveillance Court, is making crucial decisions about the extent of the country’s surveillance operations against al Qaeda –on her own.

Judge Kollar-Kotelly may be a fine judge and a wonderful person, but her background simply does not suggest she is competent to make these sorts of decisions –on her own. The Post reports that Kollar-Kotelly (and for eight months, Judge Royce Lambert, Chief Judge of FISC on 9/11 through May of the following year when Kollar-Kotelly took over) has been fashioning rules about the NSA program without appellate review or the input of other FISC judges.

This is an alarming detail, and not because the judge is a Clinton appointee with limited if any national security background. Rather, it is simply too much to ask of one judge to shape the intelligence gathering rules for the nation.

Judge Kollar-Kotelly has been on some very high-profile cases, such as the Microsoft Antitrust action, the review of the FEC’s McCain-Feingold rules, and one of the cases involving the Gitmo detainees.

From the latter case
: “[T]he Court, in its discretion and pursuant to this authority, finds that Petitioners are entitled to counsel, in order to properly litigate the habeas petitions presently before the Court and in the interest of justice,” and further “that the Government’s proposed real time monitoring and classification review procedures for legal mail and attorney notes impermissibly burden the attorney-client relationship and abrogate the attendant attorney-client privilege.”

The October 2004 decision was a sweeping victory for the detainees, and contrasts sharply with the opinion in another detainee case, issued by her colleague on the federal trial bench in D.C., Judge Richard Leon.

Judge Kollar-Kotelly may be the best judge for the role of Chief Judge of the FISC, but her management of the intelligence gathering operations of the United States in a time of war ought not to have gone unexamined by the FISA appellate court.


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