In a speech on Saturday to the American Library Association, Royce C. Lamberth, former presiding judge of the Foreign Intelligence Surveillance Court, criticized the Bush administration for bypassing the court by unilaterally monitoring international email and phone calls involving people on U.S. soil. Lamberth, who was appointed to the U.S. District Court in D.C. by Ronald Reagan, said FISC was capable of speedily approving surveillance requests when circumstances demanded it, so there was no need for the administration to evade the requirements of the Foreign Intelligence Surveillance Act. And while he declined to pass judgment on the constitutionality of the administration's warrantless surveillance (now officially suspended because of public criticism, despite the fact that it was supposedly essential to national security), Lamberth suggested that President Bush has little respect for the role judges play in protecting civil liberties:
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….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. 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.
This is obviously self-serving, but in a good way: We want judges to jealously protect their prerogatives, to insist on reviewing the executive branch's decisions affecting the privacy of Americans' communications. Still, there is reason to doubt that FISC is as tough as it should be. As evidence of the court's eagerness to cooperate with the administration, Lamberth noted that its approval rate for surveillance requests is 99 percent. He also bragged that the court further streamlined its fast-track procedures after 9/11, which makes the Bush administration's insistence that it had no choice but to break the law even more puzzling, especially since FISA allows retroactive approval of surveillance in emergencies up to 72 hours after the fact.
However minimal FISC's demands may be, the knowledge that their applications will be reviewed by officials outside the executive branch presumably discourages DOJ lawyers from making completely unfounded requests. Even cursory judicial review is better than no review at all.