A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush’s secret authorization of a domestic spying program, according to two sources.
U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John Roberts Jr. late Monday notifying him of his resignation without providing an explanation.
Two associates familiar with his decision said Tuesday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the work of the FISA court, established under the Foreign Intelligence Surveillance Act.
Robertson, appointed to the federal bench by President Bill Clinton in 1994 and later was selected by Chief Justice William Rehnquist to serve on the foreign intelligence court, declined to comment Tuesday.
Word of Robertson’s resignation came as two Senate Republicans joined the call for congressional investigations into the National Security Agency’s warrantless interception of telephone calls and e-mails to overseas locations by U.S. citizens suspected of links to terrorist groups.
Sens. Chuck Hagel of Nebraska and Olympia Snowe of Maine echoed concerns raised by Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, who has promised hearings in the new year.
At the White House, spokesman Scott McClellan was asked to explain why Bush last year said that surveillance required court approval.
“Any time you hear the United States government talking about wiretap, it requires–a wiretap requires a court order,” Bush said at the time. “Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.”
McClellan said the quote referred only to the USA Patriot Act.
Vice President Dick Cheney on Tuesday defended the secret wiretaps.
“You know, it’s not an accident that we haven’t been hit in four years,” the vice president said, speaking with reporters on Air Force Two en route from Pakistan to Oman.
Revelation of the program last week by The New York Times also spurred considerable debate among federal judges, including some who serve on the FISA court. For more than a quarter-century, that court had been seen as the only body that could legally authorize secret surveillance of espionage and terrorism suspects, and only when the Justice Department could show probable cause that its targets were foreign governments or their agents.
Robertson indicated privately to colleagues in recent conversations he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain foreign intelligence warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004, and insisted that the Justice Department certify in writing that it was not occurring.
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“They just don’t know if the product of wiretaps were used for FISA warrants–to kind of cleanse the information,” said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. “What I’ve heard some of the judges say is they feel they’ve participated in a Potemkin court.”