Civil Liberties

Former FISA Judge Slams Warrantless Surveillance

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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.

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NEXT: Civil Discourse Watch: 6/26/07 Edition

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  1. Yes, let there be no misunderstanding. This administration sucks ass. The Iraq occupation and the 9/11 attacks justify not one whit of this total disregard for checks and balances, limited government, and our liberties.

    I’m not sure, but I think my last bit of sympathy for Bush disappeared when his people first tried to circumvent FISC. Considering that FISC is virtually non-oversight as it is, that was an incredibly vile and un-American move.

  2. “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.”

    The simplest explanation isn’t even that they’d prefer to ask for forgiveness rather than permission–there’s an explanation even simpler than that.

    Ever notice that people often have perfectly logical explanations for the dumb things they do after the fact? Sure, what the Bush Administration did was probably illegal, but that’s not what they don’t want you to know…

    Listen for an administration official to respond to a question about whether something was smart with an answer about whether it was legal–it’s a dead giveaway. “We had no choice” is probably the first runner up.

    Illegality’s a secondary consideration here. I suspect this was the result of plain old dumb incompetence–the simplest explanation of all–and that’s what they don’t want you to know.

  3. I don’t care whether they act in knowing contempt of legal limits or out of total incompetence. In the end, the result is the same. Tyranny, if it ever really comes to the U.S. in full force, will likely do so due to some stumbling and bumbling around, not due to any considered plot.

  4. ” Even cursory judicial review is better than no review at all..”
    __

    No… because there is ZERO punishment from the judiciary for the few illicit Federal agents who are ever ‘discovered’ acting without warrants.

    The Feds have been doing this kind of domestic spying for nearly a century, with little fear of real consequences from the “justice system’ that they own & operate.

    The FBI just confessed to thousands of illegal surveillance acts with their self-generated ‘security-letters’ — but there are zero indictments of those guilty parties… and not even the slightest hint that the justice-system will act against them at all.

    Why bother with warrants when there’s little to fear in ignoring them ?

  5. It seems to me that this administration just doesn’t like admitting that it has to answer to anyone but itself. They probably knew that they had to get FISC approval for this stuff, and further knew that FISC would almost certainly approve it, but I bet they just did it without approval because they thought they could get away with it.

  6. “Why bother with warrants when there’s little to fear in ignoring them?”

    So what do you want?

    …congressional hearings and a special prosecutor?

  7. I am not very impressed with the judiciary’s carping and whining about not being able to put their little rubber stamp on anything the State requests. After all, the judicary is a bunch of cowards when it comes to standing up to the state and public opinion. The Judiciary didn’t protect us from the State in the War on Drugs. The Judiciary didn’t protect our freedom of speech come election time (read: McCain-Feingold). So go whine to someone who cares.

  8. I want impeachment, Ken.

  9. There need to be consquences for these people, thoreau. If you don’t smack the dog when he shits on the rug, he’s going to do it all the time.

    There need to be consquences for Bush, Cheney, and Gonzales. Someday, a future president or vice president of Attorney General is going to want to do some Big Brother spying, or start disappearing people, or torturing them, and he’s going to look back on the Bush/Cheney administration.

    And he’s either going to be afraid of what he sees and draw back, or he’s not.

    It’s too bad America blew it in November 2004 (If John Kerry wins, things might go badly in Iraq!), because impeachment is a nasty business. But here we are.

  10. I agree, joe.

    If we don’t impeach these dogs, we will regret. Maybe not immediately. Maybe the next President will lack the guts, ambition, or imagination to do this crap. But there will come a time (probably sooner rather than later) when another President decides to push the envelope even further.

    Unless we send a message.

    I want impeachment. And after impeachment I want criminal charges. And orange jumpsuits. And prison work details. I want to drive down the highway and see Bush picking up trash while a prison guard watches him.

    And I want Cheney picking up trash alongside him.

  11. I want to see a federal judge rule that sovereign immunity does not protect former government officials against civil and criminal actions under federal torture statutes.

  12. “There need to be consquences for Bush, Cheney, and Gonzales. Someday, a future president or vice president of Attorney General is going to want to do some Big Brother spying, or start disappearing people, or torturing them, and he’s going to look back on the Bush/Cheney
    administration.”

    We had a chance at consequences. Correct me if I’m wrong, but there’s been no revelations on this since before the last Presidential election.

    And the Republicans’ last best hope for taking both houses and installing a successor to the Bush Administration in the White House is for the Democrats to impeach the Bush Administration for fighting to protect us from terrorism.

    This is politics, people! If you need to believe in consequences, for people in the executive branch, try believing in hell. If there’s a hell, and the whole Bush Administration ends up there, then Rumsfeld and Gonzales will end up doing time with a jailer that makes Lynndie England look like Mother Theresa.

    Consequences? I’d settle for seeing the Bush Administration become a disgraced memory for a generation. …and I think that’s already happening.

    Remember when every time somebody posted on these topics, every toad and troll on the web would come and defend warrantless surveillance and torture like they were mom’s apple pie? Where are they now? …why aren’t people defending this crap like they used to?

    It’s sort of like Woodstock–if everyone who claimed to be there had actually been there, there would have been like 10 million people. …but it’s in reverse, ’cause if everyone who claims to have been disgusted by the Bush Administration really was, they never would have been reelected.

    The Bush Administration has disgraced itself. And when they leave office, and all the finger pointing starts in earnest, and all the tell-all books come out, I expect Bush will end up like Nixon in the nation’s memory.

    No, worse than Nixon. …much worse. …and I think that’s the best punishment we can expect. I imagine a generation from now, when our future president looks like he might step out of bounds, his critics will call him something like “Bushian”, and people will say that calling someone something like that is over the top. …and way out of line.

    : )

  13. If you need to believe in consequences, for people in the executive branch, try believing in hell. If there’s a hell, and the whole Bush Administration ends up there, then Rumsfeld and Gonzales will end up doing time with a jailer that makes Lynndie England look like Mother Theresa.

    Get me a live video feed from hell so we can pipe it into the White House, and I’ll agree that we have sufficient deterrence for future Presidents.

    And we’ll use a Y cable to get a simultaneous feed to rural Pakistan. Maybe a few people will change their minds about whom they shelter.

  14. As far as Republicans or Democrats winning in 2008, if we impeach Bush then I don’t give a damn which party wins the White House. The long term health of the Republic is not about which party holds the White House, it’s about sending a message that nobody, not even the President, can get away with these awful crimes.

    If future Presidents have a reminder of what happens when you try to torture and disappear people, and start disastrous wars, and spy on Americans without warrants, then we’ll be safe no matter which party is in the White House. If, OTOH, future Presidents see that they can get away with that shit, then it won’t matter if the Democrats get an eternal lock on the White House, because they’ll do the same shit.

    (Yes, joe, I know, not all of them. But if the message is sent that this shit is OK, then you know that eventually one of them will. We can disagree on how quickly or slowly that will happen, but it will happen either way.)

  15. Correct me if I’m wrong, but there’s been no revelations on this since before the last Presidential election.

    The FISA violations weren’t publicly known in 2004, IIRC.

  16. “Someday, a future president or vice president of Attorney General is going to want to do some Big Brother spying, or start disappearing people, or torturing them, and he’s going to look back on the Bush/Cheney administration.”-joe

    As Bush looked back at the FDR administration?

  17. I’m gonna agree with Ken Schultz here. All the big name folks from this administration are going to carry its stench around with them for the rest of their lives.

    There might be certain circles where Bush, Cheney, Rove, Rice, and Gonzo can travel in and be respected, but they will be kept away from the halls of power by both parties: the Dems, because they hate their guts, and the Repubs, because they’re going to be trying to make everyone forget which letter came after Bush’s name. For people as power-addicted as these folks, it will be like Napoleon’s exile on St Helena.

  18. thoreau,

    Of course, the scary thing is that Bush could have done almost exactly the same things (torture, spy on Americans, etc) legally, but out of ignorance or arrogance chose not to go through the right hoops. So an impeachment or prosecution is simply going to send the message that the Prez needs to make sure his/her t’s are crossed and i’s are dotted.

  19. It is in the nature of governments to wield coercive powers in ugly ways, crimethink. The question is whether those powers will be wielded without constraint. The greatest dangers come when those powers are wielded without constraint or review.

  20. I want to see a federal judge rule that sovereign immunity does not protect former government officials against civil and criminal actions under federal torture statutes.

    Both a substantive and a pedantic point: It doesn’t.

    Substantively, there is no general immunity from criminal prosecution for any government officials – after all, Nixon would likely have been prosecuted absent Ford’s pardon.

    Pedantically, as to civil liability, the doctrine of sovereign immunity applies only to the issue of suing the sovereign itself (i.e. in US that would be either the Federal or a state government), not to individual government officials.

    The notion that most government officials do not have civil liability for actions performed as part of their official duties is covered by the doctrine of “qualified immunity.” Some officials, such as the president and prosecutors (and perhaps some other executive branch officials), have “absolute immunity” from civil suits arising from actions taken while pursuing their official duties.

  21. BUSH & CO. VIOLATED WAY MORE LAWS THEN THAT…

    ONCE AGAIN I’M TELLING MY FELLOW AMERICANS & ALL THOSE WHO READ THIS HOW MANY SERIOUS CRIMINAL VIOLATIONS HAVE HAPPENED FROM THIS MATTER…

    THE WORST 1 BEING THAT FAZUL ABDULLAH MOHAMMED WAS DUMPED IN SOMALIA 4 HIM 2 SURFACE IN 1/2007
    & WAS TARGETED 4 ASSASSINATION BY THOSE AIRSTRIKES & YET HE GOT AWAY…

    THE MEDIA WON’T COVER THIS OR IS NOT ALLOWED 2 TALK ABOUT THIS SINCE THE “GWOT” IS SUPER SECRET + CONGRESS WON’T EVEN THOROUGHLY INVESTIGATE THIS EVEN AFTER BEING TOLD ABOUT
    “NSA” – “RENDITION” & “NSL’s ABUSE” LONG BEFORE
    THESE STORIES WERE EVER MADE PUBLIC…

    THE 14TH AMENDMENT SECT.4 + PUBLIC LAW 98-533 ARE CONSTITUTIONALLY BOUND 4 REWARDS 2 BE PAID
    NOT STOLEN OR 2 BE DISAVOWED BY THOSE IN POWER.

    RFJ PROGRAM HAS NO OVERSIGHT/ACCOUNTABILITY 2 ENSURE PAYMENTS…

    WE HEAR WHEN ANY OF THE ALPHABET SOUP AGENCIES CATCH TERRORISTS – WHEN JOHN Q. PUBLIC CITIZEN DOES IT – THEIR ACTIONS ARE DISAVOWED…

    THIS IS FAR MORE CRIMINAL IN NATURE THEN NIXON COULD’VE EVER DID & YET NOTHING’S HAPPENING…

    THE ACLU WOULD RATHER REPRESENT A KNOWN TERRORIST THEN REPRESENT A PATRIOTIC AMERICAN CITIZEN WHO DEFENDED HIS NATION IN TIMES OF CRISIS…

    ENJOY READING/SHARING THE TRUTH IF POSTED…

    REMEMBER WITHHOLDING EVIDENCE IS THE MOTHER OF ALL SINS – DON’T BE LIKE bush & SUPPRESS MY RIGHT 2 SPEAK FREELY – REVEAL THE TRUTH AS ONLY
    I CAN…

    IT’S ABOUT TIME 4 THE TRUTH 2 BE TOLD…

    http://national-security-4u.blogspot.com/ – 911 call + chain of events…

    http://low_down69.livejournal.com/ – how I truly believe the colluded conspiracy began w/a secret p.d.b. around 6/??/2004…

    http://360.yahoo.com/caspereraser1 – a letter I
    sent to O.P.R. to investigate these matters whereas bush deliberately denied them security clearances 2 investigate – since the “NSA” was illegally monoriting my communications 2 stop me from acquiring a civil rights attorney + 2 see who I’m contacting & what I’m saying + a detailed scenario of what happened in a 2 week time span + the press not being as totally free
    as it claims to be…

    6/21/2007 – 3:37 AM – A HUFFINGTON POST REPLY 2
    A STORY COLEEN ROWLEY POSTED ONLY 2 HAVE MY FREEDOM OF SPEECH RIGHTS SUPPRESSED…

    HOW CAN I TELL THE AMERICAN CITIZENS THE TRUTH
    WHEN NO MEDIA WILL REPORT THIS – SOME OF THE
    BLOG SPOTS WILL NOT POST IT & CONGRESS WILL NOT
    THOROUGHLY INVESTIGATE MY CLAIMS WHICH WERE MADE KNOWN 2 SOME AS EARLY AS 6/2004…

    I AM SURE JUDGE LAMBERTH MAY KNOW A LITTLE SOMETHING ABOUT ALL OF THIS & THEN SOME…

  22. Remember, kids, if you want to be taken super-seriously make sure you always type IN ALL CAPS…

  23. What bothers me is that we’ve been shutting down civil liberties to some degree in most wars and “wars” since the Civil War. There’s this weird idea that we have an emergency exception to the Constitution. Well, we don’t. This time around is more offensive because (1) it’s happening to us, and (2) we’re not really in a major war.

    As for impeachment, I’d be fine with throwing out people for pretty minor infractions, so this set of bad actors can go at any time. But a lot of the blame for this can be spread to Congress, too, as well as to our own damn fool selves for not making bigger squawks over all this funny business.

    We need to get over the anything-goes mentality of the Cold War already.

  24. Ken Shultz,

    Remember when every time somebody posted on these topics, every toad and troll on the web would come and defend warrantless surveillance and torture like they were mom’s apple pie? Where are they now? …why aren’t people defending this crap like they used to?

    THAT’S why I’m not worried about the “impeaching him for protecting us from terrorism” card. As you say, people aren’t buying that crap anymore, and they want their country back.

    But ultimately, I agree with thoreau – a Republican president in 2008 would be a small price to pay to keep the next ten presidents from going all Cheney on the American public.

    MJ,

    As Bush looked back at the FDR administration? Um, no, my point was about failure, disgrace, and public rejection.

  25. joe, you should point people to what you just wrote the next time you’re accused of being a blind partisan.

  26. Even cursory judicial review is better than no review at all.

    No, not really. What would be really good is if the media got more curious about what goes on in secret in the government. Here’s a brainstorm of an idea for a good journalist, like . . . oh, I don’t know . . . maybe Jacob Sullum.

    What Mr. Sullum should do is to call up Mr. Lamberth and ask him what the lies were when that unnamed agent lied to to FISA during the Clinton administration. Ask him who was the target of those lies. Ask him what FISA did to compensate the targetted individual for the unwarranted intrusion(s) that resulted from those lies. He should ask Mr. Lamberth if the public has a right to know the details when its government agents are caught lying.

    Mr. Lamberth seems worse than useless to me, not better.

  27. thoreau, the morons who accuse me of being excessively partisan already stand out for their disregard of reality.

    I don’t expect to reason people out of positions they didn’t reason themselves into.

  28. I don’t expect to reason people out of positions they didn’t reason themselves into.

    QFT!!!!

  29. thoreau,

    I hope you’re not referring to his polishing of the halo of FDR, ’cause that’s definitely not helping his reputation as a maverick.

    It’s ironic — well, probably not ironic, but you know what I mean — that this thread would see the praise of such an arrogant man who is probably more responsible than anyone else for the current decorative toilet-paper status of the Constitution.

  30. Sullum says: “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.”

    There still would be a need to avoid FISA in cases where the intelligence obtianed was obtained by the agent that was barred from appearing in the FISA court. Now, this may not be considered a legitimate need, but it would be good if some journalist asked Lamberth whether he thought that banning the banned agent is what lead to Bush deciding to operate outside FISA. I would luuuuuuv to hear Lamberth’s answer on that.

  31. *opens up Grape Nehi to celebrate (also drowns out the Formula 409 bubbles)

    ambles off

  32. 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.

    No where in that distinction is a glimmer of the idea that curtailing civil liberties won’t help win the war.

  33. Bush might have looked back at FDR on domestic spying and such, but he didn’t look at him about how to win a war.

  34. FISA will allow you to spy now and seek warrant later yet no one (that I saw) asked the Bush administration, what is faster than now?

  35. “…my point was about failure, disgrace, and public rejection.”-joe

    Your point was about pillorying the current administration for doing things that have precededents in earlier administrations which did not receive this kind of grief for doing. Why should Bush be disgraced while FDR is celebrated?

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