WASHINGTON (AP) — A former U.S. judge who served on a secret court overseeing the National Security Agency’s secret surveillance programs said Tuesday the system is flawed because of its failure to allow legal adversaries to question the government’s actions. But James Robertson denied that the judges act as “rubber stamps.”
“Anyone who has been a judge will tell you a judge needs to hear both sides of a case,” Robertson, a former federal district judge based in Washington who served on the secret Foreign Intelligence Surveillance Court, said during a hearing of the federal oversight board directed by President Barack Obama to scrutinize government spying.
Robertson questioned whether the secret FISA court should play the role of providing legal approval for the surveillance programs, saying the court “has turned into something like an administrative agency.”
Much of the NSA’s surveillance is overseen by the FISA court, which meets in secret and renders rulings that are classified. Some of these rulings also likely been disclosed by Edward Snowden, the NSA systems analyst who leaked significant information about the spying program. After Snowden began exposing the NSA’s operations in June, Obama instructed the board to lead a “national conversation” about the secret programs. The board has been given several secret briefings by national security officials and it plans a comprehensive inquiry and a public report on the matter.
The board’s chairman, David Medine, had told The Associated Press in advance of Tuesday’s hearing that “our primary focus will be on the programs themselves. Based on what we’ve learned so far, further questions are warranted.”
Robertson, who said he asked to join the FISA court “to see what it was up to,” had previously played a central role in national security law. Robertson was the judge who ruled against the Bush administration in the landmark Hamdan vs. Rumsfeld case, which granted inmates at the U.S. naval prison at Guantanamo Bay, Cuba, the right to challenge their detentions. That ruling was upheld by the Supreme Court in 2006.
Robertson quit the FISA court in 2005, days after The New York Times revealed widespread NSA warrantless wiretapping under President George W. Bush’s administration. Robertson, who had served on the court for 3 years, had previously refused to explain his decision. But after the hearing Tuesday he confirmed to the AP that he had “resigned in protest because the Bush administration was bypassing the court on warrantless wiretaps.”
Robertson said that FISA court judges have been scrupulous in pushing back at times against the government, repeatedly sending back flawed warrants. But he warned that Congress’ 2008 reform of the FISA system expanded the government’s authority by forcing the court to approve entire surveillance systems, not just surveillance warrants, as it previously handled. Robertson said the system needed the presence of a legal adversary to act as a check on the government’s programs.
“This process needs an adversary,” Robertson said, suggesting that the oversight board itself might play that role in the secret legal setting.
The board heard Tuesday from civil liberties activists and former Bush administration lawyers in its first public event since the spying operations were revealed in news reports.
American Civil Liberties Union Deputy Legal Director Jameel Jaffer warned the oversight board that the government’s massive sweeps of cellphone and telephone call logs and other data on phone and Internet communications erode privacy protections guaranteed by the Fourth Amendment to the Constitution. The amendment protects against unreasonable search and seizure.
Snowden’s disclosures revealed that the NSA collects phone “metadata” — records that omitted only the actual contents of conversations — from millions of Americans. A separate NSA surveillance program aimed solely at foreign terrorist suspects also sweeps up metadata about the Internet communications from smaller numbers of Americans, federal officials have acknowledged. Obama urged Americans not to worry about the secret programs because the contents of their communications are rarely targeted.
Associated Press writer Matt Apuzzo contributed to this report.