(I'll preface this post by saying the reason I find the circumvention of the FISA Court so intriguing is that in this space, I'm usually complaining about having any secret court and the expansion of its powers in the Patriot Act. Now, things have gotten so bad that the critique of the Administration is that they should have used the FISA court-- as if it is some bastion of civil liberties protections that prevents abuse of power when, instead, throughout its whole history it has refused extremely few government requests to wiretap. We live in really troubled times)
Moving on, the other nine FISA court judges have not resigned, but they are demanding answers. According to the Washington Post, the presiding FISA judge is arranging a classified briefing for them to address their concerns about the legality of President Bush's domestic spying program.
My favorite quote in the article:
One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.
"For FISA, they had to put down a written justification for the wiretap," said the official. "They couldn't dream one up."
Well, I guess it is indeed a tough process if your criteria is that you cannot invent probable cause for spying on citizens.
Even before reading that quote, it sure sounds like these FISA judges are not happy.
"The questions are obvious," said U.S. District Judge Dee Benson of Utah. "What have you been doing, and how might it affect the reliability and credibility of the information we're getting in our court?"
"Why didn't it go through FISA," Kazen asked. "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." Judge Michael J. Davis of Minnesota said he, too, wants to be sure the secret program did not produce unreliable or legally suspect information that was then used to obtain FISA warrants.
It'll be interested to see what comes out of this, though I don't know how much oversight you really get when a super secret court investigates a super secret spy order.