U.S. District Judge Dee Benson of Utah, the presiding judge of the Foreign Intelligence Surveillance Court, is arranging a classified briefing for her fellow judges to address their concerns about the legality of President Bush's domestic spying program.
Several members of the court said in
interviews with the
Washington Postthat
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.One judge, speaking on the condition of anonymity, said members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass the court.
After all, if the president isn't going to respect the law, why bother adjudicating it?
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Bush clearly
knows that a FISA court order was required to conduct a wiretap.
So why skirt the law?
Bush administration officials believe it is not possible, in a large-scale eavesdropping effort, to provide the kind of evidence the court requires to approve a warrant. Sources knowledgeable about the program said there is no way to secure a FISA warrant when the goal is to listen in on a vast array of communications
in the hopes of finding something that sounds suspicious. Attorney General Alberto R. Gonzales said the White House had tried but failed to find a way.
"For FISA, they had to put down a written justification for the wiretap," said one official, speaking anonymously to the
Post. "They couldn't dream one up."
"There is a difference between detecting, so we can prevent, and monitoring. And it's important to note the distinction between the two," Bush said Monday. But he added: "If there is a need based upon evidence, we will take that evidence to a court in order to be able to monitor calls within the United States."
But the administration didn't "take that evidence to a court," which is why it is in hot water over the issue. Several FISA judges told the
Post that 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.***
On Monday, one of 10 FISA judges, federal Judge James Robertson,
submitted his resignation -- in protest of the president's action, according to two sources familiar with his decision. He will maintain his position on the U.S. District Court.
Other judges told the
Post that they do not plan to resign but are seeking more information about the president's initiative.
"Why didn't it go through FISA," said U.S. District Judge George Kazen of the Southern District of Texas. "I think those are valid questions. The president at first said he didn't want to talk about it. Now he says, 'You're darn right I did it, and it's completely legal.' I gather he's got lawyers telling him this is legal. I want to hear those arguments."
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This item first appeared at
Journalists Against Bush's B.S.