The Washington Post’s account of the conduct of U.S. District Court Judges Royce Lamberth and Colleen Kollar-Kotelly in their capacity as Chief Judge of the FISC, commented on here, presents some very troubling questions.
A necessary caution: The Post’s account may be flawed or incomplete, but in the absence of additional details, here are the questions:
Does the appointment as Chief Judge carry with it the right to make deals with the DOJ regarding surveillance applications?
The key graphs from the story:
So early in 2002, the wary court and government lawyers developed a compromise. Any case in which the government listened to someone’s calls without a warrant, and later developed information to seek a FISA warrant for that same suspect, was to be carefully “tagged” as having involved some NSA information. Generally, there were fewer than 10 cases each year, the sources said.
According to government officials familiar with the program, the presiding FISA judges insisted that information obtained through NSA surveillance not form the basis for obtaining a warrant and that, instead, independently gathered information provide the justification for FISA monitoring in such cases. They also insisted that these cases be presented only to the presiding judge.
The “deal” seems to me to asume that the president lacks the authority to order the NSA surveillance his government put into place, and also seems to arbitrarily burden the FISA process with a new procedural hurdle, one developed by one or two judges, never communicated to their colleagues on the FISC, and never reviewed by an appeals court.
Judge Kollar-Kotelly went even farther in asserting her authority, requiring in 2004, “that high-level Justice officials certify the information was complete — or face possible perjury charges.” Later the judge made demands on DefenseSecretary Rumsfeld.
All of these actions appear to have been taken on her own counsel, without even a consultation with her fellow judges.
In re Sealed Case No. 02-001, the first decision handed down by the FISA Appeals Court, decided in November, 2002, suggests a much different view of presidential authority regarding NSA surveillance, and further suggests that the Lamberth-Kollar-Kotelly procedure may be entirely unnecessary, a procedural obstacle to intelligence gathering invented by two judges and acquiesced in by DOJ.
This is a very odd situation, and one which will be the focus of today’s show. District Court Judges are not legislators, and they are not to fashion “compromises” that escape appellate review. While DOJ may have rightly feared angering the Chief Judge, the Department’s acquiesence undermines its arguments concerning the NSA program that the president has the authority to conduct the program by hinting at a reluctance to test that authority via an appeal of a denied FISA application that rested on intelligence obtained by warrantless surveillance.