Judge Discusses Details of Work On Secret Court
Tuesday, June 26, 2007
At 3 a.m. on Aug. 8, 1998, the day after the bombings of the U.S. embassies in Kenya and Tanzania, the chief judge of a special court that supervises applications under the Foreign Intelligence Surveillance Act was awakened at home in order to approve five wiretaps, including one of Osama bin Laden's former secretary in Texas.
"Those five wiretaps turned out to be very productive," U.S. District Judge Royce C. Lamberth said Saturday during an unusually open discussion of his work at the helm of the FISA court. Wadih el-Hage, the bin Laden aide, was tried and convicted in the bombings in 2001, and "all the evidence from those wiretaps that I authorized that night were used at the trial," Lamberth said.
Lamberth, known for his outspoken nature, was the court's chief judge from 1995 to 2002 and during that period was privy, he said, "to every deepest, darkest secret our country has." His presentation Saturday, at the American Library Association's convention, was probably the most revealing discussion to date of actions by the FISA court, which since 1978 has approved wiretaps and other secret surveillance activities involving foreign intelligence and terrorism cases.
In the wake of the terrorist attacks of Sept. 11, 2001, the court shifted gears. "We changed procedures and put in all the orders from September 12 forward based on the oral briefing with the director of the FBI and the chief judge of the FISA court," Lamberth said. "The courts can respond in times of national crisis, and I think the courts have to, and we did."
One reason, he said, is that "if you move very quickly, that's when things are most productive, particularly in e-mails. As soon as an event happens, everybody is e-mailing everybody and you pick up the most productive tape."
Lamberth's defense of the court's speed and efficiency came after senior Bush administration officials said its procedures were too cumbersome to meet counterterrorism needs in the post-9/11 world, and created a system of warrantless wiretapping by the National Security Agency that did not include judicial review.
Taking direct aim at the administration's assertion, Lamberth noted that members of the court had approved almost 99 percent of the FISA applications presented. He added that he could not see a better way of conducting such surveillance.
"What the president did with the NSA," Lamberth said, was "a proposal for a worse way."
Lamberth recalled several other counterterrorism cases in which he played a key role, noting that he could speak because the court's involvement had been declassified during trials.
One case involved Ahmed Ressam, who was arrested at a Canadian border crossing with explosives in December 1999. He was later convicted of taking part in a plot to bomb U.S. sites during millennium celebrations. Lamberth said investigators found a "little piece of paper . . . with a phone number on it" in Ressam's wallet.
"The FBI came to me that same night for a warrant for that number. I gave it to them. It led to an apartment in New York. The tap on that apartment in New York led them to the cell in Montreal that had set Ressam on his way," the judge added. The apartment was raided on "a warrant that I issued under FISA . . . and they found bomb-making materials at the apartment."
Lamberth also talked about the summer of 2001, when, he said, "we knew from the intelligence we were gathering that we were going to be hit; we just didn't know when." But officials knew, he said, when "the first plane hit it was probably bin Laden, and when the second plane hit that it had to be bin Laden."
He said he was driving near the Pentagon on his way to work on Sept. 11, having been to the dentist, and recalled, "My car was engulfed in smoke, and I couldn't move." He called for help, and the FBI came "to get me in a position where I could get Justice to start approving FISA [warrants]. . . . By the time the FBI got to me in my car, I had already approved five."
As Lamberth described the FISA process, the chief justice of the United States chooses 11 district judges from around the country to serve on the special court. They rule individually on FISA applications for wiretaps, physical surveillance or search warrants.
The applications are written by a special group within the Justice Department and are based on requests from the FBI, CIA or NSA. The Justice group prepares a legal brief supporting the request along with an affidavit from the supervising investigative agent. That material is accompanied by a certification by the head of the agency making the request, usually the FBI. A final certification comes from the attorney general.
"That the attorney general had to personally sign on the dotted line that they had reviewed it and thought it was appropriate," Lamberth said, provided "the political accountability."
In a FISA court hearing, according to Lamberth, a Justice Department lawyer presents the application, usually 40 or 50 pages, and the investigative agent is put under oath. "I have the agent before me," Lamberth said. "I can question the agent. I can get into the nitty-gritty of exactly what we're doing and why."
During the Clinton administration, Lamberth said, members of the court learned that false affidavits had been filed. "Our judges thought of a real easy solution. We'll just bar that agent from ever appearing in our courtroom. So it didn't really matter if it was negligent or it was intentional. . . . And he's one of their top counterintelligence agents."
Louis J. Freeh, then director of the FBI, "came over and begged me to rescind the order, everything under the sun that could be done about that order," Lamberth said. "We never rescinded it. We enforced it. And we sent a message to the FBI: You've got to tell the truth."