Dispatches from the Creation Wars

AP reports on a speech by former FISA court judge Royce Lamberth and a speech he gave recently criticizing Bush’s warrantless wiretapping program. Lamberth was the judge for the FISA court from 1995 until 2002.

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.

This should be obvious to everyone, but seems to escape the current White House occupant. Lamberth continues:

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.”

“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.”