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Surveillance Court Quietly Moving
Some Say Previous Location, in Justice Dept., Gave an Impression of Bias

By Del Quentin Wilber
Washington Post Staff Writer
Monday, March 2, 2009

First, the workers encased the room in reinforced concrete. Then came the thick wood-and-metal doors that seal into the walls. Behind those walls they labored in secret for two years, building a courtroom, judge's chambers and clerk's offices. The only sign that they were done came recently, when biometric hand scanners and green "Restricted Access" placards were placed at the entrances.

What workers have finally completed -- or perhaps not; few really know, and none would say -- is the nation's most secure courtroom for its most secretive court. In coming days, the Foreign Intelligence Surveillance Court will move from its current base at the Justice Department and settle into a new $2 million home just off a public hallway in the District's federal courthouse.

The relocation is a rare public action by a mysterious Washington institution that is judged by its ability to keep secrets while overseeing the government's efforts to gather them. Its role, generally, is to determine whether the federal government can spy on U.S. citizens or foreigners in the United States in terrorism or espionage investigations.

Created in 1978 to curtail abusive government spying, the court enjoyed a rather obscure existence until the terrorist attacks of Sept. 11, 2001, when authorities began to frantically intensify their spying efforts.

As the number of warrant applications doubled over the years, civil liberties advocates increasingly began to express concerns that the rights of Americans were being violated. They accused the court of being overly influenced by the government officials it oversees.

That criticism played a key role in the decision to move the court to the federal courthouse, according to judges who have served on it.

"I have struggled with the perception for years that we did whatever the government wanted and were rubber stamps," said U.S. District Judge Royce C. Lamberth, who served as the secret court's chief judge from 1995 through 2002 and set in motion the move. "That was not and is not true, and this is a symbolic move that will help counter that."

When the court was created by the Foreign Intelligence Surveillance Act, the only secure area available was in the Justice Department. That put the FISA judges in the unusual position of playing on the government's home field.

The court, which has 11 judges appointed to seven-year terms by the chief justice of the United States, rents the space and supplies its own clerks and staff lawyers. One judge sits on the court at a time, in rotating week-long shifts.

Serious planning to move the court began in 2005, when a new wing was added to the District's federal courthouse on Constitution Avenue NW. By 2007, workers were tearing out old grand jury rooms and redesigning the structure under rigid security standards, said Lamberth, now chief judge of the District's federal court. He said the move would come in March but declined to provide the exact day, citing security reasons.

The FISA court's chief judge, U.S. District Judge Colleen Kollar-Kotelly, rarely grants interviews and declined to comment on the court's move. The court's spokesman, Sheldon Snook, also declined to comment. Dean Boyd, a Justice Department spokesman, declined to comment on the move, calling it an internal court matter.

The government generally must obtain a FISA judge's authorization to conduct surveillance targeting a person in the United States or a U.S. citizen abroad. Little else is known about how the oversight process works. Even when major controversies involve the FISA court -- such as tussles between its judges and the Bush administration over the government's warrantless wiretapping program -- the public usually learns the barest details of what transpired.

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.

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