Thursday, December 22, 2005

The Robertson Brief

Yesterday, we reported the resignation of Federal Judge James Robertson from the Foreign Intelligence Surveillance Court (FISA), in protest over the recently-disclosed NSA program that conducts warrantless surveillance of terrorism suspects, both at home and abroad.

Robertson's "decision" has already been hailed as courageous, although it's unclear if he will reach the icon level of other anti-Bush luminaries, such as Joe Wilson and Cindy Sheehan. Perhaps his decision wasn't so brave afterall; we've subsequently learned that Judge Robertson plans to remain on the federal bench; his resignation applies only to the FISA court, so that nice federal paycheck will keep rolling in, and there won't be any interruption of his health insurance, or other fringe benefits.

Judge Robertson may not be such a lofty judicial figure, either. Scott Johnson at Powerline has unearthed a Wall Street Journal column from 2000, outlining Robertson's role as one of the "Magnificent Seven," Clinton-era appointees to the federal bench in the D.C. area. As recounted by George Mason University Law Professor Ronald Rotunda, the Clinton judges (under the aegis of Chief Judge Norma Holloway Johnson) wound up hearing cases that related to the President's various scandals. Judge Robertson--who worked in an contributed to the Clinton's 1992 presidential campaign--was assigned the trial of Web Hubbell, the long-time Clinton crony accused of corruption as a partner at the Rose Law Firm in Little Rock, where he worked with Hillary Clinton.

As Professor Rotunda notes, Judge Robertson made some rather unusual decisions in the case that appeared to favor the defense:

"In the Hubbell tax-fraud prosecution, Judge Robertson ruled that he could ignore the ruling of the three-judge panel of the D.C. Circuit and hold that the OIC (Office of Independent Counsel) did not have jurisdiction to prosecute Mr. Hubbell and the other defendants, and that it could not use tax documents subpoenaed from Mr. Hubbell. J udge Robertson used incendiary language, calling the OIC's tactics (which other circuits had approved) "scary." The D.C. Circuit agreed with these other circuits and reversed."

Robertson's unusual--perhaps questionable conduct--extended into other elements of the trial as well. At subsequent hearings, Judge Robertson found it almost impossible to set a trial date, and Professor Rotunda observes:

At the hearing of May 8, 1998, OIC counsel asked Judge Robertson to set a trial date, which is standard operating procedure. The judge responded that he normally does that but it would be "arbitrary" to do so here, "when we're looking at the kinds of motions that I'm sure are coming." In other words, the judge refused to set a trial date because of motions not even filed; that is not standard operating procedure. The OIC attorney replied that he had already talked to defense counsel and they were prepared to find a mutually agreeable date, to which Judge Robertson answered, apparently in surprise: "Oh." He still refused to set a date.

At the June 2, 1998 hearing, the judge again questioned whether "it makes sense for us to set a trial date," and he volunteered that any date will be written "in sand here if there are, heaven forfend, interlocutory appeals." The defendants are not entitled to interlocutory appeals but the prosecution is, so once more it appeared that the judge had already decided that there would be no trial.

On July 1, three business days after oral argument, Judge Robertson issued a lengthy written opinion. This is an extraordinarily brief time in which to formulate a decision and write it up, unless the judge had made up his mind in advance.

Given these--and other--shennanigans by Judge Holloway and the "Magnificent Seven," Professor Rotunda believed an investigation was in order (it never happened). He also wondered if the federal court's reputation for integrity and impartiality would be the "greatest victim" of the Clinton Presidency. And ironically, a judge now hailed for his "courage" appears to have been a key player in a saga that brought no honor to the federal bench.

1 comment:

Sirc_Valence said...

"Communications intelligence targeted at the enemy is a fundamental incident of the use of military force." --DOJ (via powerline)

"Scary." --James Robertson

The real scary thing is that there are actually adults like this man influencing the country, to the extent that they do, through all of America's most consequencial institutions.

If we know of a hijacked passenger plane is on its way into the U.S., do judges decide whether or not to shoot it down or does the president? The answer to that question applies to whether or not he can intercept Zarqawi or Mohammed Atta's e-mail or telephone communications to or from the U.S.

I'de imagine that intercepting the messages of hundreds of Attas in training would be especially imperative when they were coming from or into this country. This is both reasonable and constitutional, so there is no need for amendment or fuss. Yet people are putting up a smokescreen of confusion about the basic fact that the U.S. Constitution prescribes that the enforcement of law relating to domestic governance mostly relies on the Judicial branch of government, with police officers serving as a sub-executive, while that relating to entities abroad mostly depends on the Executive branch itself.

I think that this latest episode of treason is another "teaching moment" for the country regarding some seldomly discussed issues. We seem to require those pretty often these days. In my view, the red doper diaper babies are projecting here. They're the weak link and reason that America is fighting with one arm behind its back today. Basically, you can't trust libs with anything of great consequence if you want America and the world to survive and succeed. I know, for some people this generalization is terrible. The truth can be that way, sometimes. Though it doesn't have to be.

I recall watching the film Shattered Glass (2003) and viewing "Caitlin's" blind eye to Stephen Glass' constant deception as analogous to America's and especially academia's blind eye to the distorted version of liberalism which basically perpetuates itself in the same way that is illustrated in the relationship that I mentioned in the movie. Basically, you don't want to fire your friends or acknowledge that something that you are apparently fond of is wrong.

We're probably at the stage where we feel sorry for the left as a body politic, but it is an outrageously deleterious form of political and cultural insanity.

I believe that the security of the intercept program was compromised by unnecessary layers of civil rights "safeguards" driven by PC BS, and definitely not by someone necessary for its operation.

Such sabotage is just one manifestation, one symptom, of a larger problem, I'm sorry but forced to say.

Its just part of our row, I suppose.