From The Washington Post, 1/5/06:
http://www.washingtonpost.com/wp-dyn/content/article/2006/01/04/AR2006010401864.html
Surveillance Court Is Seeking Answers
Judges Were Unaware of Eavesdropping
By Carol D. Leonnig
Washington Post Staff Writer
Thursday, January 5, 2006; Page A02
The members of a secret federal court that oversees government
surveillance in espionage and terrorism cases are scheduled to receive
a classified briefing Monday from top Justice Department and
intelligence officials about a controversial warrantless-eavesdropping
program, according to sources familiar with the arrangements.
Several judges on the Foreign Intelligence Surveillance Court said
they want to hear directly from administration officials why President
Bush believed he had the authority to order, without the court's
permission, wiretapping of some phone calls and e-mails after the
Sept. 11, 2001, attacks.
Of serious concern to several judges is whether any information
gleaned from intercepts by the National Security Agency was later used
to gain their permission for wiretaps without the source being
disclosed.
The court is made up of 11 judges who, on a rotating basis, hear
government applications for surveillance warrants.
But only the presiding judge, currently Colleen Kollar-Kotelly, was
notified of the government eavesdropping program.
One judge, James Robertson, who also serves on the federal bench in
Washington, resigned his seat on the surveillance court in protest
shortly after the wiretapping was revealed by the New York Times in
mid-December.
Kollar-Kotelly began pressing for a closed government briefing for the
remaining members of the court on Dec. 19, the day she learned of
Robertson's concerns.
Other judges wanted to know, as Robertson had, whether the
administration had misled their court about its sources of information
on possible terrorism suspects.
Kollar-Kotelly had privately raised concerns in 2004 about the risk
that the government could taint the integrity of the court's work by
using information it gained via wiretapping to obtain warrants from
judges under the Foreign Intelligence Surveillance Act.
On Friday, an attorney for Seifullah Chapman, one of the men convicted
as part of the "Virginia jihad network," formally asked federal
prosecutors in Virginia to determine whether warrantless NSA wiretaps
were used to gain information about his client.
Chapman, who is serving a 65-year sentence for conspiring to provide
material support to a foreign terrorist group, was the subject of a
secret FISA warrant.
"My feeling is they are a very professional organization. They would
be equally concerned that my client's rights are protected, and
they'll want to find out themselves," said John Zwerling, Chapman's
attorney.
Some judges who spoke on the condition of anonymity yesterday said
they want to know whether warrants they signed were tainted by the NSA
program.
Depending on the answers, the judges said they could demand some proof
that wiretap applications were not improperly obtained.
Defense attorneys could have a valid argument to suppress evidence
against their clients, some judges said, if information about them was
gained through warrantless eavesdropping that was not revealed to the
defense.
Yesterday, Rep. Jane Harman (Calif.), the ranking Democrat on the
House intelligence committee, sent a letter to Bush charging that the
limited nature of congressional briefings on the monitoring program
violated the National Security Act.
The White House informed the chairmen of the House and Senate
intelligence oversight committees and the two ranking Democrats about
the program.
The National Security Act requires the president to keep all members
of the two committees fully informed of intelligence activities with
the exception of those conducted covertly overseas.
"In my view, failure to provide briefings to the full congressional
intelligence committees is a continuing violation of the National
Security Act," Harman wrote.
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Another pot on the stove begins to simmer.
Harry
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