US dial-a-warrant spy judge: don't trust President, feds

The judge who used to sit in charge of the American star chamber secret court issuing surveillance warrants says that his organisation should not have been sidestepped by the Bush administration in the wake of 9/11.

Royce Lamberth was head of the Foreign Intelligence Surveillance Court from 1995 to 2002. As such, he was responsible for authorising secret intelligence-gathering operations in America involving terror and espionage cases. The FIS Court - set up in response to various spook scandals in the 1970s - turns down only 1 per cent of applications it receives for wiretaps, surveillance, bugging and covert burglaries (sorry, searches).

As is now fairly well known, in the wake of the 9/11 outrages President Bush decided that even this behind-closed-doors, quite compliant judicial oversight was too cumbersome. The White House then authorised the National Security Agency to monitor Americans' overseas calls, emails etc without going through the FIS warrant process. After a lengthy political and judicial fracas, the NSA programme was put back under FIS oversight again this year, but President Bush still maintains that he has the power to order surveillance on his own initiative at any time.

(Aside: Brits and other non-US readers should note that the American debate is entirely regarding the privacy rights of Americans. There isn't much doubt that the NSA can listen to our phone calls and read our emails without let or hindrance. It would be nice to think that our own spies were doing the same in America but, at least in the case of Brits, that's not very realistic.)

In any case, Lamberth says that President Bush overstepped his bounds when he sidelined the FIS.

"I haven't seen a proposal for a better way than presenting an application to the FIS 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."

The former secret judge said that such a strategy would yield pyrrhic victories at best in the fight of liberty against extremism.

"What we have found in the history of our country is that you can't trust the executive," he said.

"We have to understand you can fight the war [on terror] and lose everything if you have no civil liberties left when you get through fighting the war."

The Bush administration had suggested that the FIS surveillance-approval process was too cumbersome and time-consuming, holding up the struggle against terrorists. Lamberth strongly denied this, saying that he had always been happy to issue warrants for taps and burglaries at a moment's notice.

Apparently he approved five secret operations by cellphone while stuck in traffic on the morning of 9/11, and was always happy to unleash federal operatives against their possibly traitorous fellow citizens - even in the small hours of the morning or at weekends.

The good judge also criticised the FBI's implementation of Patriot Act measures, in which 56 regional supervisors were delegated powers to issue the controversial National Security Letters (NSLs). NSLs not only permit swashbuckling, unregulated surveillance, but they can also be accompanied by terrifying Soviet-style gag orders that can forbid any discussion of the NSL having been issued, on pain of a five-year stretch in the cooler.

Lamberth apparently acquits the administration of any evil intent, but there isn't much doubt that he feels judicial oversight must not be dispensed with. That's not too surprising in a judge, of course. Even so it has to be something of a warning sign when someone who's seen all the justification - all the secret poop that would make us all love Big Brother did we but know the awfulness of the threat, etc - says that the spooks and the executive branch are getting out of hand.

The AP report on Judge Lamberth's speech on Saturday can be read here.®