A Reagan Judge Slams Bush's Warrantless Wire-tapping

Judge criticizes warrantless wiretaps
By MICHAEL J. SNIFFEN,
Associated Press Writer
Sat Jun 23, 3:28 PM ET

A federal judge who used to authorize wiretaps in terrorist and espionage cases criticized President Bush's decision to order warrantless surveillance after the Sept. 11 attacks.
Royce Lamberth, a district court judge in Washington, said Saturday it was proper for executive branch agencies to conduct such surveillance. "But what we have found in the history of our country is that you can't trust the executive," he said at the American Library Association's convention.

"We have to understand you can fight the war (on terrorism) and lose everything if you have no civil liberties left when you get through fighting the war," said Lamberth, who was appointed by President Reagan.

The judge disagreed with letting the executive branch alone decide which people to spy on in national security cases.

"The executive has to fight and win the war at all costs. But judges understand the war has to be fought, but it can't be at all costs," Lamberth said. "We still have to preserve our civil liberties. Judges are the kinds of people you want to entrust that kind of judgment to more than the executive."

Lamberth 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 Foreign Intelligence Surveillance Act of 1978 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 terrorist or espionage cases. Each application is signed by the attorney general. The court has approved more than 99 percent of them.

Shortly after the attacks of Sept. 11, 2001, Bush authorized the NSA to spy on calls between people in the U.S. and suspected terrorists abroad without FISA court warrants. 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.

After the program became public and was challenged in court, Bush put it under FISA court supervision this year. The president still claims the power to order warrantless spying.
White House spokesman Tony Fratto said Bush believes in the program, which is classified because its purpose is to stop terrorists' planning.

The program "is lawful, limited, safeguarded and — most importantly — effective in protecting American citizens from terrorist attacks," Fratto said. "It's 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 FISA court met the challenge of acting quickly after Sept. 11. Lamberth was stuck in a car pool 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 into the District of Columbia.

By the time officers reached him, "I had approved five FISA coverages (warrants) on my cell phone," Lamberth said. He also approved other warrants at his home at 3 a.m. and on Saturdays.

"In a time of national emergency like that, changes have to be made in procedures. We changed a number of FISA procedures," Lamberth said.

Normal FISA warrant applications run 40 to 50 pages, but he said he issued orders in the days after Sept. 11 "based on the oral briefing by the director of the FBI to the chief judge of the FISA court."

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.

But he said when the NSA briefed him about the program, he advised them to keep good records so that if any applications came to the FISA court based on information obtained from warrantless surveillance, the court could rule on the legality.

He said he never got such an application before leaving the court in 2002.

Lamberth defended the court against those who say it is rubber stamp and said if the government is working properly, most applications should be approved.

"We're making sure there's not some political shenanigan going on or some improper motive for the surveillance," Lamberth said. "The fact that they have to submit it to us keeps them honest."

Lambert also criticized FBI Director Robert Mueller for allowing the agents in charge of all 56 FBI field offices to approve National Security Letters. These allow agents to demand information from phone companies, Internet service providers and corporations without court warrants in national security cases.

The Justice Department's inspector general recently estimated there were 3,000 violations of law between 2002 and 2005 in the FBI's use of the letters.

"Once they saw how the field offices had screwed this all up, I thought that would be a good time to centralize the approvals" in one Washington office that could enforce the rules uniformly, Lamberth said. "Unfortunately, Mueller and (Attorney General Alberto) Gonzales did not do that."


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