[Mb-civic] Secret Court's Judges Were Warned About NSA Spy Data - Washington Post

[William Swiggard]

Secret Court's Judges Were Warned About NSA Spy Data
Program May Have Led Improperly to Warrants

By Carol D. Leonnig
Washington Post Staff Writer
Thursday, February 9, 2006; A01

Twice in the past four years, a top Justice Department lawyer warned the 
presiding judge of a secret surveillance court that information 
overheard in President Bush's eavesdropping program may have been 
improperly used to obtain wiretap warrants in the court, according to 
two sources with knowledge of those events.

The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly -- 
who, like her predecessor, Royce C. Lamberth, had expressed serious 
doubts about whether the warrantless monitoring of phone calls and 
e-mails ordered by Bush was legal. Both judges had insisted that no 
information obtained this way be used to gain warrants from their court, 
according to government sources, and both had been assured by 
administration officials it would never happen.

The two heads of the Foreign Intelligence Surveillance Court were the 
only judges in the country briefed by the administration on Bush's 
program. The president's secret order, issued sometime after the Sept. 
11, 2001, attacks, allows the National Security Agency to monitor 
telephone calls and e-mails between people in the United States and 
contacts overseas.

James A. Baker, the counsel for intelligence policy in the Justice 
Department's Office of Intelligence Policy and Review, discovered in 
2004 that the government's failure to share information about its spying 
program had rendered useless a federal screening system that the judges 
had insisted upon to shield the court from tainted information. He 
alerted Kollar-Kotelly, who complained to Justice, prompting a temporary 
suspension of the NSA spying program, the sources said.

Yet another problem in a 2005 warrant application prompted 
Kollar-Kotelly to issue a stern order to government lawyers to create a 
better firewall or face more difficulty obtaining warrants.

The two judges' discomfort with the NSA spying program was previously 
known. But this new account reveals the depth of their doubts about its 
legality and their behind-the-scenes efforts to protect the court from 
what they considered potentially tainted evidence. The new accounts also 
show the degree to which Baker, a top intelligence expert at Justice, 
shared their reservations and aided the judges.

Both judges expressed concern to senior officials that the president's 
program, if ever made public and challenged in court, ran a significant 
risk of being declared unconstitutional, according to sources familiar 
with their actions. Yet the judges believed they did not have the 
authority to rule on the president's power to order the eavesdropping, 
government sources said, and focused instead on protecting the integrity 
of the FISA process.

It was an odd position for the presiding judges of the FISA court, the 
secret panel created in 1978 in response to a public outcry over 
warrantless domestic spying by J. Edgar Hoover's FBI. The court's 
appointees, chosen by then-Chief Justice William H. Rehnquist, were 
generally veteran jurists with a pro-government bent, and their 
classified work is considered a powerful tool for catching spies and 
terrorists.

The FISA court secretly grants warrants for wiretaps, telephone record 
traces and physical searches to the Justice Department, whose lawyers 
must show they have probable cause to believe that a person in the 
United States is the agent of a foreign power or government. Between 
1979 and 2004, it approved 18,748 warrants and rejected five.

Lamberth, the presiding judge at the time of the Sept. 11 attacks, and 
Kollar-Kotelly, who took over in May 2002, have repeatedly declined to 
comment on the program or their efforts to protect the FISA court. A 
Justice Department spokesman also declined to comment.

Both presiding judges agreed not to disclose the secret program to the 
10 other FISA judges, who routinely handled some of the government's 
most highly classified secrets.

So early in 2002, the wary court and government lawyers developed a 
compromise. Any case in which the government listened to someone's calls 
without a warrant, and later developed information to seek a FISA 
warrant for that same suspect, was to be carefully "tagged" as having 
involved some NSA information. Generally, there were fewer than 10 cases 
each year, the sources said.

According to government officials familiar with the program, the 
presiding FISA judges insisted that information obtained through NSA 
surveillance not form the basis for obtaining a warrant and that, 
instead, independently gathered information provide the justification 
for FISA monitoring in such cases. They also insisted that these cases 
be presented only to the presiding judge.

Lamberth and Kollar-Kotelly derived significant comfort from the trust 
they had in Baker, the government's liaison to the FISA court. He was a 
stickler-for-rules career lawyer steeped in foreign intelligence law, 
and had served as deputy director of the office before becoming the 
chief in 2001.

Baker also had privately expressed hesitation to his bosses about 
whether the domestic spying program conflicted with the FISA law, a 
government official said. Justice higher-ups viewed him as suspect, but 
they also recognized that he had the judges' confidence and kept him in 
the pivotal position of obtaining warrants to spy on possible terrorists.

In 2004, Baker warned Kollar-Kotelly he had a problem with the tagging 
system. He had concluded that the NSA was not providing him with a 
complete and updated list of the people it had monitored, so Justice 
could not definitively know -- and could not alert the court -- if it 
was seeking FISA warrants for people already spied on, government 
officials said.

Kollar-Kotelly complained to then-Attorney General John D. Ashcroft, and 
her concerns led to a temporary suspension of the program. The judge 
required that high-level Justice officials certify the information was 
complete -- or face possible perjury charges.

In 2005, Baker learned that at least one government application for a 
FISA warrant probably contained NSA information that was not made clear 
to the judges, the government officials said. Some administration 
officials explained to Kollar-Kotelly that a low-level Defense 
Department employee unfamiliar with court disclosure procedures had made 
a mistake.

Kollar-Kotelly asked Defense Secretary Donald H. Rumsfeld to ensure that 
wouldn't happen again, government officials said.

Baker declined to comment through an office assistant, who referred 
questions about his FISA work to a Justice Department spokesman. 
Pentagon spokeswoman Cynthia Smith also declined to comment and referred 
questions to Justice officials. Justice spokesman Brian Roehrkasse said 
the department could not discuss its work with the FISA court.

"The department always strives to meet the highest ethical and 
professional standards in its appearances before any court, including 
the FISA court," Roehrkasse said. "This is especially true when 
department attorneys appear before a court on an ex parte basis, as is 
the case in the FISA court."

Shortly after the warrantless eavesdropping program began, then-NSA 
Director Michael V. Hayden and Ashcroft made clear in private meetings 
that the president wanted to detect possible terrorist activity before 
another attack. They also made clear that, in such a broad hunt for 
suspicious patterns and activities, the government could never meet the 
FISA court's probable-cause requirement, government officials said.

So it confused the FISA court judges when, in their recent public 
defense of the program, Hayden and Attorney General Alberto R. Gonzales 
insisted that NSA analysts do not listen to calls unless they have a 
reasonable belief that someone with a known link to terrorism is on one 
end of the call. At a hearing Monday, Gonzales told the Senate Judiciary 
Committee that the "reasonable belief" standard is merely the "probable 
cause" standard by another name.

Several FISA judges said they also remain puzzled by Bush's assertion 
that the court was not "agile" or "nimble" enough to help catch 
terrorists. The court had routinely approved emergency wiretaps 72 hours 
after they had begun, as FISA allows, and the court's actions in the 
days after the Sept. 11 attacks suggested that its judges were hardly 
unsympathetic to the needs of their nation at war.

On Sept. 12, Bush asked new FBI Director Robert S. Mueller III in a 
Cabinet meeting whether it was safe for commercial air traffic to 
resume, according to senior government officials. Mueller had to 
acknowledge he could not give a reliable assessment.

Mueller and Justice officials went to Lamberth, who agreed that day to 
expedited procedures to issue FISA warrants for eavesdropping, a 
government official said.

The requirement for detailed paperwork was greatly eased, allowing the 
NSA to begin eavesdropping the next day on anyone suspected of a link to 
al Qaeda, every person who had ever been a member or supporter of 
militant Islamic groups, and everyone ever linked to a terrorist watch 
list in the United States or abroad, the official said.

In March 2002, the FBI and Pakistani police arrested Abu Zubaida, then 
the third-ranking al Qaeda operative, in Pakistan. When agents found 
Zubaida's laptop computer, a senior law enforcement source said, they 
discovered that the vast majority of people he had been communicating 
with were being monitored under FISA warrants or international spying 
efforts.

"Finally, we got some comfort" that surveillance efforts were working, 
said a government official familiar with Zubaida's arrest.

http://www.washingtonpost.com/wp-dyn/content/article/2006/02/08/AR2006020802511.html
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