U.S. District Judge James Robertson wrote to Chief Justice John G. Roberts on December 19, 2005, resigning from the eleven-member secret Foreign Intelligence Surveillance Court on which he had been serving. Though Judge Robertson did not publicly explain his reasons for abdicating his seat on the court, the Washington Post cited two associates familiar with his decision who, the day after the resignation, said that Judge Robertson had "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."1 In order that Judge Robertson’s decision to resign may be better understood, this article briefly summarizes the context within which Judge Robertson made his decision.
II. What is the FISA?
"Since the administration of Franklin Delano Roosevelt, presidents have claimed the right to conduct warrantless electronic surveillance in matters involving the defense of the nation, with each successive administration continuing to broaden this amorphous ‘national security exception’ to the warrant requirement of the Fourth Amendment."2 Eventually this broadening of the exception to the Fourth Amendment came to a halt when gross abuses of executive authority took place in the name of national security under the Nixon administration, such as the warrantless wire tapping of domestic dissidents groups, the Democratic Party,3 and Martin Luther King.4 Public outrage lead to the formation of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (known as the "Church Committee"), which determined in 1976 that the executive branch was in fact consistently abusing its power to conduct warrantless national security surveillance.5 In light of the Church Committee’s determination, the Congress passed the Foreign Intelligence Surveillance Act of 1978, (hereinafter FISA).6 The purpose of the Act was to authorize electronic surveillance of foreign powers or their agents.7
III. What is the FISC?
Congress established the Foreign Intelligence Surveillance Court in order to provide some level of judicial review over foreign intelligence surveillance activities.8 The FISC is an Article III court, staffed by eleven district court judges appointed by the Chief Justice.9 To obtain a surveillance order, a federal officer must apply to one of these judges and detail:
1) the identity of the target; 2) the information relied on by the government to demonstrate that the target is a "foreign power" or an "agent of a foreign power"; 3) evidence that the place where the surveillance will occur is being used, or is about to be used, by the foreign power or its agent; 4) the type of surveillance to be used; 5) the minimization procedures to be employed; and 6) certification that the information sought is "foreign intelligence information."10
Subsequently, if the judge finds that there is probable cause to believe that the target is a foreign power or its agent, and, in the case of a United States person, that the target "is not being considered an agent of a foreign power solely on the basis of activities protected by the First Amendment," the judge may issue the surveillance order.11
IV. What Did the Bush Administration Do?
Under a presidential order signed in 2002, the National Security Agency (NSA) "has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible ‘dirty numbers’ linked to Al Qaeda."12 The New York Times article explains:
Mr. Bush’s executive order allowing some warrantless eavesdropping on those inside the United States - including American citizens, permanent legal residents, tourists and other foreigners - is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the NSA operation.13
Thus, for three years the Bush administration has been operating under the belief that the probable cause requirements of the Constitution and the statutorily mandated procedures requiring oversight of the executive by the FISC are trumped by the executive’s wartime authority. The administration said it obtained permission for the spying program on Sept. 18, 2001, when Congress authorized the president
"[T]o use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001."14
However, whether the Congressional permission to use "force" constitutes permission to perform what otherwise would constitute illegal eavesdropping on Americans is a hotly contested issue. For example, Eric M. Freedman, a law professor at Hofstra University, said "No fair-minded person . . . can read an authorization to use military force as authority to go off and do domestic spying."15 Likewise, Professor Chemerinsky feels that the war powers granted to the president do not authorize him to conduct domestic spying, and asks if they did, "why would there have to be a FISA court at all?"16
V. Why Did Judge Robertson Resign?
The Washington Post cites one anonymous source as saying about the FISA court judges that, "They just don’t know if the product of wiretaps were used for FISA warrants—to kind of cleanse the information . . . . What I’ve heard some of the judges say is they feel they’ve participated in a Potemkin Court."17 The reference to a Potemkin Court refers back to a historical fraud of sorts. Grigori Aleksandrovich Potemkin, governor of a then new Russian province, that of the Crimea, had elaborate fake villages constructed for Catherine the Great’s tours of the area in order to leave her with the impression that the area was prospering under his rule when in fact it was not.
The analogy suggests that the information gleaned from the illegal wire taps was then used to overcome the probable cause hurdle- a hurdle the NSA would not have overcome without the illegally-acquired information. This way, further investigation may take place legally, despite the initial problems such a course of investigation poses in the eyes of the court. One must ask, why then pay lip service to the court’s requirements of probable cause at all if one can simply choose when to respect its requirements and when to disregard them?
Of course, without Judge Robertson’s own explanation of why he resigned, there is only speculation of others. However, it seems quite logical to conclude, as those who have come forward have suggested, that Judge Robertson was fed up with taking part in a judicial system that has been made obsolete in light of the executive’s disregard of it.
Scott Silliman, former Air Force Attorney and Duke University law professor said Judge Robertson’s resignation "was definitely a statement of protest," and that what is unusual about it is that "it signifies that at least one member of the court believes that the president has exceeded his legal authority."18 Perhaps the impending congressional investigation into the Bush administration’s policy of side stepping judicial scrutiny of the executive’s surveillance practices will provide some more answers to what remains an unanswered question: why did Judge Robertson resign?
1 Carol D. Leonnig & Dafna Linzer, Spy Court Judge Quits in Protest, Washingtonpost.com, at http://www.washingtonpost.com/wp-dyn/content/
article/2005/12/20/AR2005122000685.html?sub=AR (Dec. 21, 2005).
2 John J. Dvorske, Validity, Construction and Application of Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.A. §§ 1801 et seq.) Authorizing Electronic Surveillance of Foreign Powers and their Agents, 190 A.L.R. Fed. 385 (2005).
4 David S. Jonas, The Foreign Intelligence Surveillance Act Through the Lens of the 9/11 Commission Report: The Wisdom of the Patriot Act Amendments and the Decision of the Foreign Intelligence Surveillance Court of Review, 27 N.C. Cent. L.J. 95, 103 (2005).
5 Id; Jennifer L. Sullivan, From "The Purpose" to "A Significant Purpose": Assessing the Constitutionality of the Foreign Intelligence Surveillance Act Under the Fourth Amendment, 19 Notre Dame J.L. Ethics & Pub. Pol’y 379, 391 (2005).
6 50 U.S.C. §§ 1801 et seq.; Dvorske, supra note 2.
7 For the Act’s definitions of foreign powers or their agents, see 50 U.S.C. §§ 1801-1802 (2004).
8 Sullivan, supra note 4.
9 Originally the Court was staffed by 7 judges. 50 U.S.C. § 1803(a) (2004). However, the Patriot Act expanded the number of judges to 11. USA PATRIOT Act § 208, 115 Stat. at 283 (amending 50 U.S.C. sec. 1803 (2000)).
10 Dvorske, supra note 2.
12 James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, Dec. 16, 2005.
14 Adam Liptak, Little Help from Justices on Spy Program, N.Y. Times, Dec. 23, 2005.
17 Carol D. Leonnig & Dafna Linzer, Spy Court Judge Quits in Protest, Washingtonpost.com, at http://www.washingtonpost.com/wp-dyn/content/
article/2005/12/20/AR2005122000685.html?sub=AR (Dec. 21, 2005).
18 Gina Holland, Judge Resigns Over Secret Surveillance, Washingtonpost.com, at http://www.washingtonpost.com/wp-dyn/content/
article/2005/12/21/AR2005122100356.html (Dec. 21, 2005).
Joel Huotari is a third year law student at Northern Illinois University and the Editor in Chief of the law review.