Surveillance Court Quietly Moving

Most public information about the court has emerged in a handful of public opinions issued by the judges, the FISA appeals court and annual statistics released by the Justice Department.

The department reported seeking 2,370 applications to conduct electronic surveillance or searches in 2007, the last year for which statistics are available. FISA judges denied three applications and made "substantive modifications" to 86 others, the department reported. Those sorts of numbers that raise skepticism about the court's independence.

Melissa Goodman, a staff attorney for the American Civil Liberties Union, said FISA judges "appear to be excessively deferential to the government."

Although she says she thinks the move may help with appearances, Goodman said she does not expect dynamics to change much in the new building, because the court "will still operate in a one-sided fashion," in that only government authorities appear before the judges.

The setup of the courtrooms is different, however. In the Justice Department courtroom, the judges, government lawyers and federal agents meet around a conference table. The new courtroom has a bench for a judge, Lamberth said, as in a traditional court setting, though it has no area designated for defense lawyers.

Judges and former Justice officials said they worked exceedingly hard to protect the rights of those who will probably never know they were under government surveillance. The judges described a grueling job that wears down psyches and often takes place outside any courtroom.

Lamberth recalled many middle-of-the-night visits to his Virginia home by carloads of agents and government lawyers seeking emergency orders to conduct searches or monitor phone calls and e-mail accounts. On the morning of the Sept. 11, 2001, attacks, Lamberth approved warrants over his cellphone, he said.

The number of emergency visits and phone calls has dropped since FISA was amended last year to give the government seven days, up from three, to conduct surveillance before seeking court approval, judges say.

But that measure hasn't reduced the workload. Judges review an average of nine lengthy warrant applications each business day during their rotation on the bench.

Moving the courtroom probably "won't change the intensity of the work," said U.S. District Judge Reggie B. Walton, who has served on the FISA court since 2007.

Walton compared a typical day on the FISA bench to an average day presiding over the high-profile trial of I. "Scooter" Libby, who was an aide to Vice President Richard B. Cheney.

"By the end of the week, I'm extremely exhausted," he said.

That fatigue is fueled, in part, by the disheartening details of terrorism investigations presented by authorities. "It has opened my eyes to the level of hatred that exists in the world," Walton said.

Lamberth, a hulking Texan, began to cry as he described a secret briefing about a terrorist threat to the District that he received as a FISA judge. "My wife and friends live here," he said.

Being on the FISA court, he said, was the most important job of his career. "I think a judicial function as significant as this should be in a courtroom in a traditional judicial building," he added.