Man of Conscience

Federal District Judge James Robertson has resigned from the Foreign Intelligence Surveillance Court (FISA), apparently in protest over the recently-disclosed NSA domestic surveillance program. Sources told the Washington Post that Judge Robertson had deep reservations about the program's legality, and felt it tainted the work of the FISA court.

While Judge Robertson was well-regarded by his colleagues, he was one of the most liberal members of the FISA court, and frequently ruled against the Bush Administration in cases relating to the War on Terror. In his most famous decision Hamadan vs. Rumsfeld, Robertson ruled that the Pentagon's system for trying terror suspects at Gunatanamo Bay was stacked against defendants. Robertson's decision was subsequently overturned by a three-judge federal appellate panel that included Judge John Roberts, now Chief Justice of the U.S. Supreme Court.

Judge Robertson was named to the federal bench by President Clinton in 1994, and later selected to serve on the FISA court by then-Chief Justice William Rhenquist. Some observers described Robertson's decision as "courageous," but I'm guessing a former federal judge, with more than 30 years of legal experience, won't have a hard time finding work. His salary as a senior partner at a "name" law firm or law school dean will far exceed the $140,000 a year he earned on the federal bench.

More puzzling is Robertson's sudden dissatisfaction with warrantless wiretaps. The practice is nothing new; as Drudge (and others) have reported, the practice dates back to the Carter Administration, and Robertson's patron (Bill Clinton) signed an executive order continuing warrantless surveillance, and former Deputy Attorney General Jamie Gorelick opined that the president had the "inherent authority" to authorize such searches. Apparently, Judge Robertson had fewer problems with warantless domestic surveillance during the Clinton years, or if he did, his protests were far more muted.

On a related note, Federal Judge Richard Posner has a characteristically brillant op-ed in today's edition of the Wa-Po. From Judge Posner's perspective, the real threat is not from the domestic surveillance program, but from continuing gaps in our ability to collect information on terrorists operating in this country. As he notes, the NSA program was expanded primarily to make up for shortfalls in domestic intelligence collection. He makes a convincing case for creating a new spy agency to handle missions now divided between the FBI, the NSA and other agencies.