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Judge who resigned from spy court critical of detainees' treatment

The federal judge who quit the nation's secret spy court in protest over the Bush administration's covert domestic wiretaps has been one of the judiciary's most active and feisty critics of the Guantanamo Bay detention center in Cuba, where hundreds of foreigners have been held for years without charge.

Despite his resignation from the spy court, U.S. District Judge James Robertson, 67, remains on the federal bench and is expected to issue another ruling in a Guantanamo case later this week.

The 11-member Foreign Intelligence Surveillance Court is perhaps the most secretive in America, created by the Foreign Intelligence Surveillance Act. It reviews U.S. government requests for surreptitious eavesdropping to gather intelligence on suspected U.S. enemies. Last year, according to a report to Congress, it received 1,758 warrant requests—and approved all but four.

President Bush set off a political and civil libertarian firestorm on Saturday by confirming a New York Times story that he'd secretly authorized the eavesdropping of U.S-foreign calls, as well as some e-mail, without seeking warrants, as part of a National Security Agency program to gather intelligence on al-Qaida.

Bush administration officials cited the need for "agility" in bypassing the FISA court—despite its ability to obtain warrants after the fact. Now the Senate Judiciary Committee is calling hearings to examine Bush's assertion that his war powers permitted him to authorize the eavesdropping program, which he did more than 30 times.

"Apparently Judge Robertson did not want to aid and abet criminal NSA electronic surveillance," the New York Center for Constitutional Rights said in a statement. The center has alleged for four years that Bush has been overstepping his war powers in his Guantanamo and enemy combatant practices.

Robertson was unrelenting in his criticism of the Bush administration when he shut down the Pentagon-created Guantanamo war-crimes court a year ago in a 45-page opinion that accused the White House of using a pick-and-choose approach on prisoner of war policies.

"The government has asserted a position starkly different from the positions and behavior of the United States in previous conflicts," he wrote, "one that can only weaken the United States' own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad."

On Nov. 8, 2004, Robertson issued a restraining order against the Pentagon's military commission accusing Salim Hamdan of Yemen of war crimes or serving as Osama bin Laden's driver. That same day, 1,300 miles away, a Marine delivered the ruling to an Army colonel at Guantanamo, bringing the president's war-crimes court to a halt.

Robertson, who was appointed to the bench by President Clinton in 1994 and to the FISA court by Supreme Court Justice William H. Rehnquist in 2002, has repeatedly bristled at the government's exercise of war powers since the Sept. 11, 2001, attacks.

Duke University law professor Scott Silliman cast Robertson as one of the judiciary's leading critics of the president's war powers; his Hamdan ruling declared the president's commissions both unconstitutional and in defiance of the Geneva Conventions.

"He feels strongly that the rule of law must pertain to some of these cases," said Silliman, who doesn't know the judge but has read his rulings. "He is aware of the fact that until a court rules on what rights these detainees at Guantanamo Bay have, they are in legal limbo."

A federal appeals court overruled Robertson on the war-crimes commission, setting the stage for a Supreme Court showdown. Oral arguments are in March. In the meantime, Silliman said, it appears that Robertson is concerned that the Bush administration's use of warrant-less wiretaps may have contaminated some FISA certifications.

By resigning, "Robertson is adding his voice to Congress and saying there needs to be some focus put on these claims of presidential authority," said Silliman, a retired Air Force judge advocate and head of Duke's Center on Law Ethics and National Security.

Attorney General Alberto Gonzales defended the NSA surveillance program Wednesday.

"I'm not going to speculate why a judge would step down from the FISA court," he said. "We believe the president has both the statutory authority and constitutional authority to engage in the intelligence during a time of war with our enemy."

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(Rosenberg reports for The Miami Herald.)

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(c) 2005, Knight Ridder/Tribune Information Services.

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