Surveillance-court judge quits in protest

WASHINGTON — A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush's secret authorization of a domestic spying program, according to two sources.

U.S. District Judge James Robertson, one of 11 members of the secret court set up by the Foreign Intelligence Surveillance Act, sent a letter to Chief Justice John Roberts Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said Tuesday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable.

Robertson, who was appointed to the federal bench in Washington by President Clinton in 1994 and was later selected by then-Chief Justice William Rehnquist to serve on the FISA court, declined to comment late Tuesday.

Word of Robertson's resignation came as two Senate Republicans joined the call for congressional investigations into the National Security Agency's interception, without a court warrant, of telephone calls and e-mails to overseas locations by U.S. citizens suspected of links to terrorist groups. They questioned the legality of the operation and the extent to which the White House kept Congress informed.

Sens. Chuck Hagel of Nebraska and Olympia Snowe of Maine echoed concerns raised by Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, who has promised hearings in the new year. Hagel and Snowe joined Democrats Dianne Feinstein of California, Carl Levin of Michigan and Ron Wyden of Oregon in calling for an investigation.

Bush also faced criticism Tuesday for telling an audience in 2004 — well after he had authorized the secret surveillance program — that the government didn't engage in eavesdropping without court approval.

"Any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order," Bush said in a speech promoting the Patriot Act. "... When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."

White House spokesman Scott McClellan said he didn't consider Bush's comments misleading because the president was talking about the Patriot Act, not the secret surveillance program.

Revelation of the program last week by the New York Times also spurred considerable debate among federal judges, including some who serve on the secret FISA court. For more than a quarter-century, that court had been seen as the only body that could legally authorize secret surveillance of espionage and terrorism suspects, and only when the Justice Department could show probable cause that its targets were foreign governments or their agents.

Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants, sources said.

FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004, and insisted that the Justice Department certify in writing that it was not occurring.

"They just don't know if the product of wiretaps were used for FISA warrants — to kind of cleanse the information," said one source, who requested anonymity.

Robertson is considered a liberal judge who has often ruled against the Bush administration's assertions of broad powers in the terrorism fight.

Bush said Monday that the White House briefed Congress more than a dozen times. But those briefings were conducted with only a handful of lawmakers who were sworn to secrecy and prevented from discussing the matter with anyone or seeking outside legal opinions.

Vice President Dick Cheney said yesterday that the president's decision to bypass court review and authorize domestic eavesdropping by executive order was part of a concerted effort to rebuild presidential powers weakened in the 1970s as a result of the Watergate scandal and the Vietnam War.

Returning from a trip to the Middle East, Cheney said threats facing the country require that the president's authority under the Constitution be "unimpaired."

"Watergate and a lot of the things around Watergate and Vietnam, both during the 1970s, served, I think, to erode the authority ... the president needs to be effective, especially in the national-security area," Cheney told reporters aboard Air Force Two.

Cheney dismissed the idea that Americans were concerned about potential abuse of power.

"The president and I believe very deeply that there is a hell of a threat," Cheney said, adding that "the vast majority" of Americans support the administration's surveillance policies.

"And so if there's a backlash pending, I think the backlash is going to be against those who are suggesting somehow we shouldn't take these steps in order to defend the country."

Material from Knight Ridder Newspapers and the Los Angeles Times is included in this report.