UPDATE:

Clarice Feldman has an open letter to AG Gonzales asking for investigation and possible impeachment of the judges who are leaking to the press.

END UPDATE

Andrew McCarthy is stunned judges are playing partisan games with FISA [h/t Clarice Feldman]:

This is eye-popping on several different levels.

First of all, judges speaking to the press regarding matters that may end up in litigation is always a major impropriety, regardless of what kind of matters are involved. Canon 3 of the federal Code of Judicial Conduct expressly admonishes: “A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge’s direction and control.” This is so elementary to fairness and impartiality — the hallmarks of the judicial function — that it is almost surprising to find a rule about it.

But let’s leave that aside for a second. These are the judges of the FISA court. Of the hundreds of federal judges in the United States, there are, as already noted, less than a dozen specially chosen for these weighty responsibilities. They are selected largely because they are thought to be of unquestionable rectitude, particularly when it comes to things like leaking to the press.

To find federal FISA court judges leaking to the Washington Post about an upcoming closed meeting with administration officials about the highest classified matters of national security in the middle of a war is simply shocking.

Sorry to say this, but this is not the first time these FISA judges broke their oaths. On December 22 the Washington Post named names when the FISA Judges put partisanship above protecting Americans:

“The questions are obvious,” said U.S. District Judge Dee Benson of Utah. “What have you been doing, and how might it affect the reliability and credibility of the information we’re getting in our court?”
…
Other judges contacted yesterday said they do not plan to resign but are seeking more information about the president’s initiative.
…
The judges could, depending on their level of satisfaction with the answers, demand that the Justice Department produce proof that previous wiretaps were not tainted, according to government officials knowledgeable about the FISA court. Warrants obtained through secret surveillance could be thrown into question.

Sound familiar?

Judge George Kazen of the Southern District of Texas said in an interview yesterday that his information about the program has been largely limited to press accounts over the past several days.

“Why didn’t it go through FISA,” Kazen asked. “I think those are valid questions. The president at first said he didn’t want to talk about it. Now he says, ‘You’re darn right I did it, and it’s completely legal.’ I gather he’s got lawyers telling him this is legal. I want to hear those arguments.” Judge Michael J. Davis of Minnesota said he, too, wants to be sure the secret program did not produce unreliable or legally suspect information that was then used to obtain FISA warrants.

“I share the other judges’ concerns,” he said.

So, here are your judges who seem to have problems shouldering the responsibility required of them, our rogues gallery:

Judge Dee Benson
Judge George Kazen
Judge Michael J. Davis
Judge James Robertson

My bets are on Benson, Davis and Robertson. Kazen seems simply cautious. But they are all democrat nominations to the bench. Why is that?

And this is serious business, and the reporters are not free and clear of criminal charges

The New York Times reporters who broke the Bush “Spygate” story, as well as the paper’s top executives who approved its publication, face the very real prospect of criminal indictment by the Bush Justice Department – a lawyer involved in the 1971 Pentagon Papers battle is warning.

With a full-blown Justice Department investigation now underway, Harvey Silvergate tells the Boston Phoenix: “A variety of federal statutes, from the Espionage Act on down, give Bush ample means to prosecute the Times reporters who got the scoop, James Risen and Eric Lichtblau.”

Silvergate represented several parties in the Pentagon Papers litigation, a first amendment battle royale that pitted the Nixon administration against the Times, the Boston Globe and the Washington Post 35 years ago. The Watergate scandal’s rising tide, however, swamped then-Attorney General John Mitchell, prompting him to abandon plans to prosecute the three papers.

This time, says Silvergate, the White House and the Old Gray Lady appear to be on an unavoidable collision course.

Full speed ahead!