When Unelected Judges Attack
I briefly covered the story in the Washington Post yesterday about the two judges who told the administration they would not issue warrants based on information obtained from the NSA program that we’ve heard so much about of late. That story has indeed fired up many on the right – but not for the reason that the author intended.
Hugh Hewitt interviewed several judges yesterday who were troubled by the stance of the FISA judges, and in a lead editorial in today’s WSJ, the response is withering:
We’d like to thank the Washington Post for publishing a story yesterday that so quickly proved our editorial point of the same day about the folly of putting judges in control of national security decisions. That’s what we call service.
The front-page story reported that on rare occasion the Bush Administration has used information from the NSA’s warrantless foreign-linked wiretaps to seek domestic wiretapping authority from the Foreign Intelligence Surveillance Court. This was said to have upset chief FISA judge Colleen Kollar-Kotelly, and the tenor of the story is that this is one more example of how the warrantless wiretaps are an abuse of power. But the better question is, Who elected Ms. Kollar-Kotelly?
The story’s real news is that Judge Kollar-Kotelly, and her predecessor, Judge Royce Lamberth, took it upon themselves to erect a new “wall” concerning how intelligence is to be used to protect America. They decided that pertinent information gleaned from a warrantless wiretap should never be used later to justify a domestic warrant. But why not? If a tip gathered from an email from Pakistan leads to suspicion about an American-based contact, what’s wrong with using that news to get a legal warrant to track that suspect in the U.S.? It might even prevent a domestic attack.
‘Scuse me?
Yet another assault on our system of government. The Judiciary is just an annoying impediment to the untrammelled power of the Executive. They’re not even elected (take note, Justice Alito!). Checks and Balances? Pshaw! That’s for wimps and Democrats.
New? It’s an old “wall” against the admissibility of illegally-gathered evidence in Court.
Next we’ll be arguing that evidence extracted via torture is admissible in Court. Oh, wait …
Well, I’m certainly more troubled by the legality of evidence gathered from the program than the WSJ, that’s for sure…
Despite all the tons of verbiage I’ve jettisoned on this program, I still think the best solution is a simply stated one: work with the Congress to draft new legislation that makes the program explicity legal…
Jacques-
Question: what does FISA stand for?
Hint: it involves Foreign Intelligence not criminal prosecution.
When you’re building a criminal prosecution, you worry about whether evidence against the defendant will hold up in court. When you’re trying to prevent a terrorist attack, you worry about whether the evidence against the suspect is accurate.
Different circumstances — different standards.
On a different topic, I completely agree with you on the dismissive use of the adjective “unelected.” The nomination and confirmation process is a very different process than that of popular elections, but it’s not necessarily an inferior one. FISA judges are supposed to be impartial legal experts with a special expertise in intelligence-gathering. However flawed the Senate confirmation process is, I firmly believe it’s better than popular elections at selecting candidates who meet those qualifications.
Jeez, Clint. I realize that the WSJ editorial writers have never taken a Civics class. But I thought you had.
You can’t use illegally-obtained evidence to establish Probable Cause for obtaining a warrant. If you could, then the authorities could say to the Judge, “We illegally broke into this guy’s house and found evidence for [insert your favourite illegal activity here]. On that basis, please grant us a warrant to go back and search the place ‘legally’.”
In other words, you would utterly shred the 4th Amendment.
Is that so hard to understand?
Judge Kollar-Kotelly (not “Ms Kollar-Kottelly) has, evidently decided that the NSA program is illegal, or of sufficiently-dubious legality that she is unwilling to grant warrants based on evidence collected with it. She a) is privy to details of the program that we are not and b) is a Federal Judge. I think her opinion on the matter carries considerably greater weight than yours or mine.
The hacks from the WSJ don’t make the case that the program is legal. They simply argue that the Judge is being obstructionist (” took it upon themselves to erect a new ‘wall’ concerning how intelligence is to be used”) in refusing to grant a warrant on the basis of illegally-gathered evidence.
If you want to live in a country where Judges do grant warrants on the basis of illegally-gathered evidence, I’m sure someone can provide you with a list … Fortunately, this country is not (yet) on that list.
Well, Jacques – I’m with you to a point – but that all hinges on the judgment (pun intended) that the program is illegal. I guess the point is do all judges get to decide what’s legal and what’s not? I know she’s not just any judge, but really, an assertion that the program is illegal is no better than an assertion that it’s legal.
Not trying to be an apologist here, just trying to see the other side…
Mark,
If you want to criticize both Judge Kollar-Kotelly and Judge Lamberth, both of whom have been briefed on the NSA program (which neither you, nor the WSJ Editorial Board, have been), and both of whom are Federal FISA Judges, that they are wrong about the legality of the NSA program, go ahead.
But that’s not the argument made by the hacks over at the WSJ. They don’t care whether the evidence was collected legally or illegally. They consider it an outrage that a “unelected judge” should dare to not grant a warrant, regardless of whether the evidence to establish Probable Cause was gathered legally or not.
Jacques-
Not at all. I would expect trial judges to throw out at least some FISA warrants, and thus the entire prosecutions based on them. But I still want those warrants issued, so that terrorist plots can be stopped.
Would it really be so awful if we’d arrested the 9/11 hijackers on September 10th, and then held them as illegal enemy combatants at Gitmo rather than trying them for attempted murder, because the information on their plot was inadmissable in a criminal proceeding? (And, yes, I expect there to be a judicial proceeding to determine that they are indeed enemy combatants — but I’d expect foreign intelligence to be admissable to such a proceeding.)
No, no, the Journal goes further than I would, to be sure…I was just playing a little Devil’s advocate here…I totally agree that the two judges in question know a heckuva a lot more than I do about what is going on. I just think there is a point to be made that it’s not what a person feels is illegal, but what has been ruled on at some point…
Again, I go to my fallback position of let’s get this thing settled with new legislation one way or another…
Clint,
I’m not sure how to parse your response. But I think you are arguing (in agreement with the WSJ editorialists) that warrants ought to be granted, even when the evidence establishing Probable Cause was gathered illegally.
I tried to explain to you how allowing that would utterly subvert our legal system. If my explanation was unclear, perhaps you need to find some other source to explain how our legal system works. This is important stuff.
Clint: I think your expectation of a judicial proceeding at Gitmo is misplaced – we’ve had people there for four years without knowing what the charges or against them, or how they can fight them – in my opinion, this is shameful –
Peter-
I apologize if I was unclear — I meant “expect” in the sense that there ought to be such proceedings. Secondarily, I’m confident that as the cases continue to work their way through the Supreme Court a reasonable procedure will eventually be established — though certainly not as quickly as it ought to be (it ought to be established legislatively, which can work much more quickly).
Jacques-
Gosh, and I usually find snide, condescending insults to be so persuasive…
What I’m arguing is just that intelligence gathering, aimed to prevent terrorist attacks, and police investigations, aimed to produce successful criminal prosecutions, are two different things. NSA spies and police officers do different jobs and operate under different rules.
My point is that the system by which we fight enemy soldiers in a war is totally distinct from that by which the police fight crime — and can and should be kept as much as possible distinct.
When a fireman breaks down your door in the middle of the night, he doesn’t need a warrant. When a soldier breaks down a door in Fallujah (or in Atlanta during the Civil War), he doesn’t need a warrant. When an FBI agent taps your phone as part of a criminal investigation, he needs a warrant based on probable cause that it will produce evidence of a crime. When an NSA agent taps a phone as part of a foreign intelligence operation, he needs a FISA warrant based on evidence that you are an agent for a foreign power.
Each of these four government employees violating someone’s privacy has an entirely different set of standards by which he is held accountable for his actions. And the existence of each in no way “utterly subverts” any of the others.
You can argue that terrorism ought to be treated as a criminal matter, rather than as a military one, but you can’t just assert it and call anyone who disagrees an idiot — or rather you can, but it isn’t likely to persuade anyone.
We are not talking about fighting foreign soldiers on foreign soil. We are not talking about spying on foreigners abroad, or “agents of a foreign power” here at home.
We are not talking about battlefield tactics or “firemen” or whatever.
We are talking about eavesdropping on Americans. And the requirements for obtaining a warrant to do so.
The standard for FISA warrants is still Probable Cause.
Sorry. But that’s the Law.
And there’s a reason why that’s the Law.
You want to change the standard for FISA warrants from Probable Cause to Reasonable Suspicion? That was the DeWine amendment. (The Administration said “No thanks.”)
You want to make warrantless eavesdropping on Americans legal? OK. Let’s talk about that. (You’ll have an uphill battle against the 4th Amendment. But hey! There’s a War on!)
But none of those things affects in the slightest what the current law is. Namely, that eavesdropping on Americans requires a (FISA) warrant. That obtaining a (FISA) warrant requires establishing Probable Cause, and that establishing Probable Cause requires legally-obtained evidence.
You realise, surely, the absurdity of requiring a warrant (for anything) if you make illegally-obtained evidence admissible for the purpose of obtaining that warrant. The net result is indistinguishable from not requiring a warrant at all.
Argue, if you want, for warrantless eavesdropping on Americans. But leave the absurd arguments to the WSJ editorialists.
Look. Maybe the legal ins and outs are too distracting.
We all agree that we need to be eavesdropping on al Qaeda. But I firmly maintain that the Administration should not be doing so in a fashion that contravenes existing Law. If the Law doesn’t permit what they feel needs to be done, then they need to go to Congress and ask for it to be amended (that’s what they did with the PATRIOT Act). If they don’t think the Congress will grant them those changes, then maybe they need to rethink their tactics.
But, certainly, you don’t go about (as the whackjobs at the WSJ Editorial Page have done) attacking FISA Judges for upholding the Law as written.