Thursday, July 11, 2013 5:40 pm
Federal judge: FISA court not a rubber stamp
By FREDERIC J. FROMMERAssociated Press
Royce Lamberth was chief judge of the Foreign Intelligence Surveillance Court from 1995 to 2002. Among other things, the court oversees the National Security Agency's secret surveillance programs, now under scrutiny following revelations by former NSA contractor Edward Snowden.
"You've had judges like me, and the public perception of me is certainly not that I'm a rubber stamp for the government," Lamberth said in an interview, laughing. As if to underscore the point, Lamberth had issued a ruling earlier in the day ordering the government to stop genital searches of Guantanamo Bay detainees who want to meet with their lawyers.
Lamberth was appointed to the federal bench by President Ronald Reagan in 1987 and has been chief judge since 2008. On Tuesday, when he turns 70, he'll step down as chief judge of the court but remain as a senior judge with a reduced caseload.
Last year, the government asked the FISA court to approve 1,789 applications to spy on foreign intelligence targets, according to a Justice Department notice to Congress dated April 30. The court approved all but one - and that was withdrawn by the government.
But Lamberth said that doesn't mean the approval is automatic. Often, judges come back with questions or comments about the requests and require intelligence agencies to modify them to meet their standards.
He said he doesn't remember rejecting any government request during his time on the FISA court. The overwhelming number of those "were the kinds of things we should be doing to protect our country," Lamberth said. "They were the kinds of surveillances that I thought the executive branch was right to do. And I felt that each one was the kind of thing that we needed to do to keep our country safe - both from spies and from terrorists."
The FISA court used to meet at the Justice Department, a bastion of the executive branch, and it was Lamberth's initiative to move it to the federal courthouse, which happened a few years ago. He said he thought there would be a better public perception of the court if it were in a judiciary building.
"I thought it was important that we be more like a court," he recalled. "We were a court, but as long as you're in the Justice Department building, it did not present the image that we were a court. And I thought it important that the public understand that the government had to come to us."
Lamberth acknowledged that judges have to be concerned about civil liberties.
"I said in a speech one time, `We can't sacrifice all of our civil liberties in order to save our country, but we also have to recognize that we have to save our country,'" he said.
The jovial Lamberth is known for more than his work on national security issues. He has a reputation for his outspoken comments, both in his opinions and from the bench. A few examples:
-At a hearing last month, he accused Russia of acting like a "scofflaw" and an "outlaw" by refusing his order to hand over a Jewish group's historical books and documents. Earlier, he had slapped Russia with a $50,000-a-day civil contempt sanction for refusing his order to give up the documents.
-Last year, he told Justice Department lawyers "I can't for the life of me" figure out why the department had come up with new government restrictions on lawyers' access to detainees at Guantanamo Bay. A few weeks later, he ordered the government to end the new policy, calling it "an illegitimate exercise of executive power."
-In a longstanding legal battle between American Indians and the government over their trust funds, Lamberth called the Interior Department "a dinosaur - the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago." The appeals court removed Lamberth from the case after that, saying he had lost his objectivity. The government eventually settled the case for $3.4 billion.
In the interview, the normally thick-skinned Lamberth talked about how that removal bothered him.
"I don't quarrel that the language was intemperate. It had been born of 12 years' frustration of repeated lying to me by the government," he said. He argued that the removal was not justified.
"I do know that half of my obituary will be my being removed from that case, and I resent that," he said, managing a chuckle.
He also brings his native Texas with him to his chambers. His office is adorned with a pair of Longhorns and a flower vase in the shape of a cowboy boot. He's been known to show up at a judicial conference wearing his 10-gallon hat and a shirt patterned on the Lone Star State flag.
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