Dec 21 2005

FISA Judge: Resigned or Suspended?

Published by at 4:01 pm under All General Discussions,FISA-NSA


Michelle Malkin has a round up on this subject, and seems to be thinking along the same lines. Thanks for the link Michelle!


You know, for a man who resigned in protest, Judge Robertson is being awfully tight lipped. Why is he not out in the press promoting his personal sacrifice made for the good of the country? If this is a protest resignation – why is he not out on every media circuit like Richard Clarke and others who quit and ran?

And why is the Bush administration also being quiet? If this was such a big protest why aren’t they out spinning the media? Is it better the media run amok on this story, calling for impeachment – which is now all over MSNBC.

One of the ‘sources’ claiming the resignation is a protest is Scott Silliman.

He is widely sought throughout the country as a guest lecturer on the Law of War, and is a frequent commentator on CNN, National Public Radio, and other national radio and television news programs on issues involving military law and national security.

NPR and CNN? Well, if this CNN interview on John Walker Lindh is any example the man is fairly even handed, and fairly accurate. But this transcript on military tribunals gives me the impression he sees our war effort as a law enforcement exercise – not one of survival. The fact he is faced off against Anne Coulter is fairly telling of his political leanings.

Woohoo, the liberals are giving conservatives a Christmas present!.


More chicken little cries from Silliman and other Robertson mouthpieces here, with ridiculous warnings about terror cases being in jeopardy. What about finding AQ contacts, sympathizers and memebers in the US before they attack and kill people?

The second comentor on this is a Carter era bureaucrat named “.. Kenneth C. Bass, a former senior Justice Department lawyer who oversaw such wiretap requests during the Carter administration. ” He has made some interesting statements of late:

Kenneth C. Bass III, another expert on FISA, said the administration might have thought it did not have enough evidence to obtain a warrant. Bass, a Washington lawyer who worked on intelligence matters during the Carter administration, speculated that U.S. authorities might have seized a computer or a phone that was used by an Al Qaeda operative.

“The scuttlebutt is they were then using all the links or phone numbers they found,” Bass said. “It certainly sounds reasonable to say, ‘We are targeting people with links to Al Qaeda,’ but it may be just a list of phone numbers,” he said. “That probably wouldn’t satisfy the FISA court.”

More here in a statement on FISA to Congress in 2002 discussing the Gorelick Wall. Too much to review quickly. More possibly tomorrow.


More here


The press had speculated that the FISA judge who just resigned from that secret court that reviews Patriot Act surveillance did so in protest to the NSA taps. As I pointed out in this earlier post that seemed like some serious cut and run set of logic. Something you would think a FISA judge would not do.

But I had not made the connection to the NY Times-Risen leaks regarding the highly classified NSA surveillance program – the one used when the FISA process was too slow.

I must stop here and speculate a bit about due process under the NSA and FISA processes. There is nothing that says any surveillance under the NSA process cannot later go through the FISA process for final blessing. In fact this is what I suspect is the way it is done. The NSA process is temporary, and can easily be verified through the normal, longer FISA process.

But I had not seen this for sure and so I had held off suggesting it in my posts. Until I saw this snippet on Mac Ranger’s site from the NY Times article (now behind the pay-to-read wall)

“According to those officials and others, reservations about aspects of the program have also been expressed by Senator John D. Rockefeller IV, the West Virginia Democrat who is the vice chairman of the Senate Intelligence Committee, and a judge presiding over a secret court that oversees intelligence matters. Some of the questions about the agency’s new powers led the administration to temporarily suspend the operation last year and impose more restrictions, the officials said.”

Mac Ranger was pointing out the Sen Rockefellar had tipped the media to his concerns, illegally, because he was mentioned in the NY Times article. But if you notice, I have emphasized something else in that paragraph regarding a FISA judge.

Recall the reporting on the FISA judge’s resgination

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court’s work.

I now suspect Judge Robertson resigned for leaking information to the press regarding the NSA process – which he would know all too well if FISA was reviewing the NSA surveillance in a post action, verification role.

In fact, the Washington Post article assumes just the opposite – that anything the NSA picks ups cannot be used through FISA!

Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.

“They just don’t know if the product of wiretaps were used for FISA warrants — to kind of cleanse the information,” said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. “What I’ve heard some of the judges say is they feel they’ve participated in a Potemkin court.”

This makes no sense. If the NSA process is to be a fail safe intermediate, even temporary process to find Al Qaeda contacts in the US, why would it not be prudent to post check the probable cause through FISA? Then we learn why this is being fought:

Robertson is considered a liberal judge who has often ruled against the Bush administration’s assertions of broad powers in the terrorism fight, most notably in Hamdan v. Rumsfeld . Robertson held in that case that the Pentagon’s military commissions for prosecuting terrorism suspects at Guantanamo Bay, Cuba, were illegal and stacked against the detainees.

So, did this activist, liberal judge try and take matters into his own hands and begin leaking to the press?

7 responses so far

7 Responses to “FISA Judge: Resigned or Suspended?”

  1. LuckyBogey says:

    AJ – Did you get my email on Plame?

    I agree with you about the Judge. CIA would also had knowledge of this program and I also think anyone on the SSCI that was briefed on this NSA Program (EchelonII?) could have leaked this to the Risen/NYT.

    The Dems and the MSM are trying to move this debate into FISA authorizations. I don’t think we should be going in this direction! This only fuels the fire for the libs and plays on civil liberties’ fears.

    Look at Rockefeller’s written note about technology and “TIA”. This is about new technology. It is no longer necessary to go to the switch site to wiretap phone calls. For example, FCC recently ruled that CALEA covers VOIP services. The purpose of CALEA is to preserve the ability of law enforcement to conduct electronic surveillance in the face of rapid advances in telecommunications technology.

    This is not domestic wire tapping as the MSM would like us to believe! This is an automated interception program (remember Able Danger) and warrants are not feasible until a specific individual in the US is identified. Note Graham’s comment in the WaPo:

    “I came out of the room with the full sense that we were dealing with a change in technology but not policy,” Graham said, with new opportunities to intercept overseas calls that passed through U.S. switches. He believed eavesdropping would continue to be limited to “calls that initiated outside the United States, had a destination outside the United States but that transferred through a U.S.-based communications system.”

    The NYT has released information about a classified program and they have broken the law!

  2. Ghost Dansing says:

    I always said modern Republicanism has a problem with the Liberal Constitution.

  3. Who Is The NSA Wiretap Leaker?

    Actually the timing of the leak, the Rockefeller letter, and now this resignation is suspect. The leak and story was obviously released to jettison the Patriot Act and to counter any good news from Iraq. The letter was released because his name was …

  4. […] This sounds a lot like Judge Robertson and Silliman (here and here). Hopefully they understand they never received any immunity from prosecution. […]

  5. […] But the timing of this whole thing is suspect, as AJStrata notices: I now suspect Judge Robertson resigned for leaking information to the press regarding the NSA process – which he would know all too well if FISA was reviewing the NSA surveillance in a post action, verification role. […]

  6. […] the USA for the first time in decades. I figured this out after I and other bloggers realized the story was a political hatched job, fed to the press by a disgruntled FIS Court judge (who was forced to resign for his leak to the NY […]

  7. […] of the tragedies that arose out of the NY Times’ erroneous reporting on the FISA-NSA changes made by President Bush in the after math of 3,000 people killed by […]