Trouble On The FISC

Yes, it seems we have a a judge making things up as she goes along. I know, most will say "And that's different from the norm how?" Well, it is when it's the chief jurist on the Federal Intelligence Surveillance Court. Judge Colleen Kollar-Kotelly has been making decisions regarding the court, and what the NSA must produce to obtain a warrant.

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.

And, according to the two bios I found for Judge Kollar-Kotelly, I'd like to know where her qualifications are regarding foreign intelligence, or intelligence in general.Here is the first bio. and the second one is below.

Born 1943 in New York, NY

Federal Judicial Service:
U. S. District Court for the District of Columbia
Nominated by William J. Clinton on January 7, 1997, to a seat vacated by Harold H. Greene; Confirmed by the Senate on March 20, 1997, and received commission on March 26, 1997.

Education:
Catholic University of America, B.A., 1965
Catholic University of America, Columbus School of Law, J.D., 1968

Professional Career:Law clerk, Hon. Catherine Kelly, District of Columbia Court of Appeals, 1968-1969
Attorney, U.S. Department of Justice, Criminal Division, Appellate Section, 1969-1972
Chief legal counsel, U.S. Department of Health and Human Services, St. Elizabeth's Hospital, 1972-1984
Associate judge, Superior Court of the District of Columbia, 1984-1997

Race or Ethnicity: White

Gender: Female

Now, would someone care to explain to me where a person with ZERO intelligence experience has the right to dictate to the NSA or the government what it will and won't provide to obtain a warrant. Obviously, general legal ethics dictates that the evidence provided for a warrant not be tainted--that is, evidence that was not illegally obtained. But to demand that the request for a warrant not be based on NSA information is simply nuts. Sometimes, that is all that is available, and should it be discovered through the NSA that someone deserves the warrant, why not use that information?

The Post's article goes onto to include some nice talking points in it. This includes the 72 hour argument.

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.

Simply put, they're not agile enough. 72 hours is a long time to wait for a warrant. Say a terrorist is in the nation, and is using a disposable cell phone. You can eavesdrop on him now, or you can wait fro the warrnat. In 72 hours, the guy's switched to another phone, which would prompt another warrant. Worse yet, let's say a terrorist is in Chicago, and he's scouting targets. You know he's a terrorist, or has such intentions. You go to the FISC to obtain a warrant, and on day two of waiting, something spooks your terrorist, and he bolts. So much for the warrant. The NSA program grants the government a level of flexibility, and it still protects the rights of citizens.

But, in the second paragraph of the column, the Post has this glaring notation:

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.

This is a profound statement, and based on her legal education I'm now left questioning whether Judge Kollar-Kotelly is truly qualified to handle her position. Jurisprudence on this subject, backed up by court precedents, show that this program is positively legal. Indeed, the courts have specifically stated that the 1978 FISA law can't trump the president's powers under the Constitution. In short, it's my opinion that Judge Kollar-Kotelly isn't making decisions in the best interest of gaining the intelligence we need to protect this nation. The decisions being made by her have faced no appellate review, and hasn't been dealt with by the other jurists on the FISC.

Overall, she has the qualifications to sit on the court, and to render decisions based on what's presented to her. However, without the review by the appeallate court connected to the FISC, she is playing loose and fast with rules she is creating, and in doing so, she will greatly put us in harm's way again. We can't fight this war using political correctness. You can't fight this war with both hands tied behind our back. Her decisions regarding what can be presented, and her personal belief that the NSA intercept program may not be legal, seem to be tainting her judgment.

Publius II