WASHINGTON — The former chief judge of a secret national security court took a swipe Saturday at the administration's recently halted domestic spying program and said he insisted from the outset that the information gleaned must not be co-mingled with intelligence gathered under court warrants.
Because of that precaution, U.S. District Judge Royce Lamberth said, he never had to rule on whether President Bush had the power to launch the separate, warrantless spying program in the aftermath of the Sept. 11, 2001 attacks. Lamberth's seven-year term on the Foreign Intelligence Surveillance Court ended in May 2002.
In a rare public appearance, at the American Library Association's annual conference and a brief chat afterward with reporters, Lamberth also said that the FBI could have avoided a huge flap over its mishandling of thousands of letter demands for phone, email, bank and other private records with a more centralized procedure. If FBI Director Robert Mueller had required that a supervisor at bureau headquarters approve each of those National Security Letters, he said, uniform standards could have been applied and mistakes eliminated.
He also assured librarians that members of the secret court are sensitive to civil liberties. "The judges understand that the war has to be fought, but not at all costs," he said.
Lamberth declined to say whether he believes the National Security Agency's wiretap program was illegal.
But he said he has "never seen a better way" to conduct domestic spying than under the national security court created by the 1978 Foreign Intelligence Surveillance Act. The court secretly approves warrants for wiretaps and searches in counterterrorism and espionage investigations.
"I've seen a proposal for a worse way," Lamberth said. "That's what the president did with the NSA program."
When the NSA program to monitor overseas calls was first proposed in late 2001, Lamberth said, he had "many discussions" with Attorney General John Ashcroft and John Yoo, a Justice Department lawyer whose legal opinions argued that the president has expansive emergency powers during wartime.
"My primary motivation was, if the president was going to assert this authority ... that it be done totally separately," he said. "If anything was presented to the FISA court that came from that program, the FISA court had to be told about it. Then we had to rule on whether it was illegally obtained or not."
In January, partly in response to an outcry from civil rights groups that challenged the program's legality, Attorney General Alberto Gonzales disclosed that the NSA program would be put under the auspices of the FISA court.
Lamberth said he would not be surprised if Congress also requires the court to approve all National Security Letters sent by the FBI requesting phone, email or financial records.
"I can't say it would be a great burden on the FISA court," he said.
Recent internal audits found that FBI agents had violated the law or agency rules in sending letter requests in national security investigations, including instances in which agents sought information to which the bureau was not entitled.
Lamberth attributed the problems to "bureaucratic bumbling," which he blamed partly on policies requiring special agents who head FBI field offices to approve the letters, rather than a central office at headquarters.
But he heaped praise on FBI Director Mueller, who has taken personal responsibility for the privacy breaches, saying he is "absolutely top notch ... an absolutely phenomenally qualified lawyer and a master at running government agencies."
"There's no question about integrity, no question about competence, no question that he's trying to do the right thing," Lamberth said.
Asked his view of Gonzales, who is under fire amid a furor over the firing of nine U.S. attorneys and allegations of partisanship in the Justice Department, Lamberth declined comment.
2007 McClatchy Newspapers