FISA Court Demands Answers

FISA Judge James Robertson, who submitted his resignation on Monday, isn’t the only member of the court to take issue with the White House’s decision to circumvent them with their secret spying program.

The presiding judge of a secret court that oversees government surveillance in espionage and terrorism cases is arranging a classified briefing for her fellow judges to address their concerns about the legality of President Bush's domestic spying program, according to several intelligence and government sources.

Several members of the Foreign Intelligence Surveillance Court said in interviews that they want to know why the administration believed secretly listening in on telephone calls and reading e-mails of U.S. citizens without court authorization was legal. Some of the judges said they are particularly concerned that information gleaned from the president's eavesdropping program may have been improperly used to gain authorized wiretaps from their court.

"The questions are obvious," said U.S. District Judge Dee Benson of Utah. "What have you been doing, and how might it affect the reliability and credibility of the information we're getting in our court?"

[…]

"I need to know more about it to decide whether it was so distasteful," Benson said. "But I wonder: If you've got us here, why didn't you go through us? They've said it's faster [to bypass FISA], but they have emergency authority under FISA, so I don't know."

Good questions all. I would particularly like to hear the president respond to that last bit. Why does FISA exist, if he’s going to ignore them?

It sure would be nice if some enterprising reporter would directly ask the president if his only genuine use for FISA was a beard. Disbanding FISA would have raised suspicions; it was a lot easier for the government to simply undermine the FISA court’s authority, while no one was ever the wiser.

The entire court is threatening to resign if Bush doesn’t give them some answers.

One judge, speaking on the condition of anonymity, also said members could suggest disbanding the court in light of the president’s suggestion that he has the power to bypass the court.

The inimitably clever Peter Daou believes that this scandal will eventually, and inevitably, fade into so much background noise like all the others that have gone before. I don’t know that he’s wrong (especially since he’s usually right!), but I’m beginning to wonder if maybe this is the straw that has broken the camel’s back. With an entire court murmuring about quitting in protest, and every defense issued by the administration making them look worse and raising yet further questions, they may have finally wandered into a bog of political quicksand from which they will not so easily extricate themselves this time.

One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.

"For FISA, they had to put down a written justification for the wiretap," said the official. "They couldn't dream one up."

Leaky leaky. The truth is, if the intelligence community has decided Bush is done, he’s done—and it won’t matter what his approval rating is, what party controls Congress, or what the American people think. If they’re poised to sell him down the river on this one, this story is nowhere near done.