Judge Lamberth was the head of the FISA Court when 9-11 occurred. As Bush attempted to address how the FISA Court had allowed, over time, ridiculous barriers to arise in our processes (not our law) that allowed 9-11 to happen, Lamberth was one of the judges fighting the changes. I have a whole category of posts on the matter, but to recap: prior to 9-11 the FIS Court would not allow any leads of terrorist activities detected by the National Security Agency to be used as part of the evidence for probable cause for a surveillance warrant. This procedural barrier had grown up since before the FISA statutes where created and were embodied in the Gorelick memo made infamous by the 9-11 Commission. The first link above points to Court documents where Lamberth was legally fighting to retain the Gorelck wall-memo, which he references many times in his findings. Everyone needs to slow down a moment and ponder that situation.

What this means, and I believe actually happened, is the NSA was monitoring Bin Laden and his cells overseas. We knew about the Atta cell in Hamburg, Germany were all the key 9-11 leaders came from and we knew they were in the US – because we were monitoring the calls going to people in Hamburg and elsewhere. We know this because the man who headed the NSA at the time and now heads the CIA was crystal clear on the matter:

On January 23rd, General Michael Hayden spoke to the National Press Club in Washington, D.C.
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Hayden informed us that his office has been operating under an executive order (EO#12333 from 1981) that gave the NSA the tools it is currently using — meaning the NSA wasn’t suddenly unleashed to go marauding every American’s privacy by George W. Bush.
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“I [Hayden] testified in open session to the House Intel Committee in April of the year 2000. At the time, I created some looks of disbelief when I said that if Osama bin Laden crossed the bridge from Niagara Falls, Ontario to Niagara Falls, New York, there were provisions of U.S. law that would kick in, offer him protections and affect how NSA could now cover him.”
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He admits that we knew that Mohamed Atta and his crew were in the US. But he says that “we did not know anything more” because prior to 9/11 “Mohamed Atta and his fellow 18 hijackers would have been presumed to have been protected persons, U.S. persons, by NSA “.

Until we fixed our laws we allowed terrorists, once here in the country (legally I should add), to operate completely free of any concern. Even as the NSA picked up the communications of the 9-11 terrorists to coordinators and money people overseas, and even though they were suspected terrorists under surveillance by the CIA and German intelligence forces, we had a truly silly procedural rule that said an NSA lead was junk compared to an FBI lead.

All Bush did was tell the NSA (and other intelligence organizations I presume) that they could pass the leads to the FBI. That’s it. That was the big change. Instead of throwing the lead out because one person was in the US and the other was outside, pass it to the FBI. If the FBI was concerned the lead was a valid risk the surveillance would go forward – most times (if not all) with the FIS Court’s permission. Bush did not bypass FISA – he was requiring it to take serious the serious leads we picked up from overseas people in contact with people here in America. Simple common sense. But Lamberth (and other justices) still fight the idea that an NSA lead is worthy of investigation.

At least Lamberth is acknowledges nothing done was illegal – he (a judge, not President) would simply prefer to risk American lives in order to preserve some theoretical policy that says it is wrong to use intelligence to find killers amongst us. Of course he couches “the finding of killers amongst us using intel” as the concept of “the administration”. Make sure to understand this equivalency when reading his recently reported views:

A federal judge who used to authorize wiretaps in terrorist and espionage cases criticized President Bush’s decision to order warrantless surveillance after the Sept. 11 attacks.

Royce Lamberth, a district court judge in Washington, said Saturday it was proper for executive branch agencies to conduct such surveillance. “But what we have found in the history of our country is that you can’t trust the executive,” he said at the American Library Association’s convention.

“We have to understand you can fight the war (on terrorism) and lose everything if you have no civil liberties left when you get through fighting the war,” said Lamberth, who was appointed by President Reagan.

The judge disagreed with letting the executive branch alone decide which people to spy on in national security cases.

“The executive has to fight and win the war at all costs. But judges understand the war has to be fought, but it can’t be at all costs,” Lamberth said. “We still have to preserve our civil liberties. Judges are the kinds of people you want to entrust that kind of judgment to more than the executive.”

It is a stunning admission that Lamberth bases his entire theory on the idea you cannot trust the people who took oaths to protect this nation from attack. Without the basic pessimistic assumption his claim the surveillance is bad is meaningless. It is laughable when you realize it is in judges, who are not even accountable to the people, where he would prefer the power to decide who is a threat to this nation to be held. It is worth noting Lamberth is the only FIS Court judge to ever be overturrned on appeal to the FIS Review Court. Even after 9-11 he fought to retain the Gorelick wall and was overturned.

Lamberth is trying to salvage a dead and gone theory. He would take evidence from the FBI, but not the NSA. And why? Well, the FBI would not break laws to find a criminal because evidence obtained without Miranda, etc is not valid in court. Of course this is BS on the face of it, but it is now clear how Clinton was brow-beaten into treating acts of war as criminal efforts to be tried with a defending counsel provided by the ACLU (if needed). He ran up against these myopic, holier than thou judicial theorists.

Lamberth and the current FIS Court Chief judge have not allowed NSA leads to come into the FISA process completely. They still demand the FBI go out and find substantiating or independent evidence before accepting the NSA lead as part of a suite of evidence for probable cause for surveillance. But the idea we would allow a person in the US, who is known to be in contact with a dangerous terrorist, roam around without surveillance is just mind boggling. Any system can be abused. But the fact is a judge is in no position to second guess the NSA or the President on risks to this nation and it is unconstitutional to lay these responsibilities in the Judiciary. But these theorists keep trying to claim it is OK if a few al-Qaeda cells get through and kill Americans because, you see, you can’t trust executives.

To me this kind of thinking proves beyond a shadow of a doubt you cannot trust the judicial system because it ends up pivoting on the mind of one person, who is not accountable to the people. A mind that can have a seriously warped view of reality. At least the administration is actually an army of people with avenues of redress if they think a President is abusing his powers. We do need to protect this country, and at times at all costs. This time the cost to the FIS Court was nothing but judicial ego. An ego that did allow 3,000 people to die while we sat on information that could have possibly stopped the attack.

UpdateSome folks need a primer on the FISA-NSA issue. Here is a comment I made to a reader who has no idea what this issue is about.

No Bush did not change the policies after Lamberth left the court (see here). So you cannot make up your facts here is the reporting:

“The internal debate at the Justice Department and F.B.I. over wiretap surveillance of terrorist groups ignited in March, prompted by questions raised by Royce C. Lamberth, the chief judge of the Foreign Intelligence Surveillance Court, a little-known panel that decides whether to approve Justice Department applications to permit wiretaps and clandestine searches in espionage and international terror cases.

In a letter to Attorney General Ashcroft, Judge Lamberth raised questions about a wiretap request related to a Hamas member, officials said. Under the Foreign Intelligence Surveillance Act, the F.B.I. must make applications, through the Justice Department, to the surveillance court to authorize wiretaps and clandestine searches of the homes and offices of suspected terrorists and spies.

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Judge Lamberth’s concerns about F.B.I. applications to the court are apparently related to whether the bureau was seeking wiretaps under the act on individuals without informing the court of a subject’s status pending criminal investigations.”

Lamberth was the source of the problem because the actual changes began in 2001 – right after 9-11:

“The Committee heard testimony on November 28, 2001, from Assistant Attorney General Michael Chertoff and, on December 6, 2001, from Attorney General Ashcroft. In response to written questions submitted in connection with the latter hearing, DOJ confirmed that shortly after the USA PATRIOT Act had been signed by the President on October 26, 2001, DOJ began to press the Congress for additional changes to relax FISA requirements, including expansion of the definition of “foreign power” to include individual, non-U.S. persons engaged in international terrorism.”

The problem was getting the changes through a stubborn and blind set of judges who did not agree amongst themsleves many times.

“The FISA Court had rejected the DOJ’s proposed procedure for implementing the USA PATRIOT Act, and the FISA Court of Review was hearing its first appeal in its 20-year-plus existence to address important issues regarding these USA PATRIOT Act amendments to the FISA.”

And as I said, Lamberth and Kotelly (current chief judge) put out restrictions on NSA leads:

“The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly — who, like her predecessor, Royce C. Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails ordered by Bush was legal. Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.”

Both judges made the same claim. No independent NSA intercepts (alone) would be used for probable cause for a FISA warrant. I think it is safe to take their word over yours any day of the week.

Read this post as well. It debunks all of your leftist mythology. BTW – the judges also put the lie to your claim about non-citizens:

“The court’s job is to decide whether to grant warrants requested by the NSA or the FBI to monitor communications of American citizens and legal residents.”

Notice that both categories are given equal status. And Atta was a legal resident – in case you forgot. More here on the judges’ statements. More reporting here that Lamberth and Kotelly were aware of the changes. This report puts the program start in Oct 01.

Oh, and this one is the reporting that showed Lamberth participated in the new program that FINALLY allowed the NSA leads to be used for surveillance warrants:

“So early in 2002, the wary court and government lawyers developed a compromise. Any case in which the government listened to someone’s calls without a warrant, and later developed information to seek a FISA warrant for that same suspect, was to be carefully “tagged” as having involved some NSA information.
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According to government officials familiar with the program, the presiding FISA judges insisted that information obtained through NSA surveillance not form the basis for obtaining a warrant and that, instead, independently gathered information provide the justification for FISA monitoring in such cases.”

Lots of links to the actual reporting and statements by people in the FISA Court and administration.