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June 2002

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This article is in the news archives --- for current news go to the Third Branch News.


An Interview with Judge Royce C. Lamberth

Judge Royce C. Lamberth, U.S. District Court for the District of Columbia, was appointed to the federal bench in 1987. Before joining the Judiciary he was a U.S. Army Captain in the JAG Corps, an assistant U.S. attorney, and Chief of the Department of Justice Civil Division. He recently completed a term as presiding judge of the Foreign Intelligence Surveillance Court.

Q:You've called the Foreign Intelligence Surveillance Court "the least known, but probably most important court in the war on terrorism?" Why?

A: The FISC has nationwide jurisdiction to authorize the United States government to conduct electronic surveillances and physical searches for national security purposes when the target is a foreign power or the individual is acting as the agent of a foreign power. Major international terrorist groups may be targeted by the FBI, CIA, NSA and other intelligence agencies. Since 9-11, invaluable intelligence information has been sought and obtained as a result of warrants and orders issued by this court.

There's no question that every judge who has ever served on this court has thought it was the most significant thing they've ever done as a judge. When I did the hearings on the embassy bombings in Africa, we started the hearings in my living room at 3:00 in the morning. And some of the taps I did that night turned out to be very significant and were used in the New York trials of the people indicted for the bombings. I heard one of the key applications of the millennium period at 2:00 a.m. after a person was arrested in Seattle with bomb materials found in his car.

Q:How does the court function? How does it approve or disapprove warrants for surveillance? Are the court's actions reviewable?

A:Applications for electronic surveillances and physical searches are presented to individual judges of the court who conduct virtually all the hearings at a special secured courtroom in Washington. Currently, one judge comes to Washington each week for two days for a regular sitting of the court. Emergency motions have, or may be, presented to the presiding judge or another available judge between regular sittings. Every application is a formal written application, sometimes 40-50 pages in length, with great detail showing the evidence and what reason there may be to suspect the person. Each application is supported by an affidavit of the investigative agent who is responsible for the surveillance, and who personally appears before the judge to respond to any questions, along with the Justice Department lawyer from the Attorney General's Office of Intelligence Policy and Review. Each application also is accompanied by a certificate signed by the head of the investigative agency involved who certifies the need for the surveillance, and by approval by the Attorney General or Deputy Attorney General that all statutory requirements for the surveillance have been met. They can't present it to the court until it has been signed by the Attorney General or Deputy Attorney General.

There is a court of review composed of three judges of the courts of appeals from three different circuits. But there has never been an appeal in the history of the court.

Q:Why was the court formed in 1978? What process, if any, was in place before the court was formed?

A:Warrantless electronic surveillances authorized by the Attorney General apparently were begun before World War II by President Roosevelt, based upon the President's inherent and constitutional powers as chief executive officer, commander-in-chief of the armed forces, and his responsibilities to conduct the nation's foreign affairs. The intelligence agencies provided targets for the Attorney General's approval. But in a number of criminal prosecutions in the 1960s and early 1970s, the government's warrantless electronic surveillance program came under judicial scrutiny resulting in the Supreme Court in 1972 striking down warrantless surveillance if it was directed towards domestic organizations. The
Supreme Court said it made no judgement with regard to electronic surveillance of foreign powers or their agents. The congressional investigations in the mid-70s about alleged intelligence abuses led to the enactment of the Foreign Intelligence Surveillance Act and the creation of this court.

Q:How many members does the current court have, who appoints them, and how long do they serve? What specifically is the role of the presiding judge?

A:The Chief Justice appoints the members of the court. Originally, the court had seven members from seven different circuits, appointed for seven year non-renewable terms. The first judges appointed served staggered terms so that only one judge was replaced each year. This year, however, Congress amended the statute to add four new judges and provide that three must live within 20 miles of the District of Columbia. The four new judges have now been appointed by the Chief Justice and they all entered on duty May 19, for staggered terms of four, five, six and seven years. Congress increased the number of court members because they thought there would be more cases as a result of the war on terrorism.

The new presiding judge is Judge Colleen Kollar-Kotelly of the District of Columbia, who replaced me when my term expired on May 18. The presiding judge presides over the annual conference of the court held at the Supreme Court, which is attended by the Chief Justice, the Attorney General and the directors of the FBI, CIA and NSA, and the members of the court. We have an annual conference on or about the anniversary date of when the court actually got started on May 18, 1979. Our conference this year was May 14. The presiding judge also runs the court, sets the schedule—the normal administrative duties of any chief judge.

Q:How does the court ensure that every warrant for surveillance is proper and necessary, and that personal rights are protected?

A:All of the proceedings are ex parte so we do understand that the judges of the court have a special duty to protect the rights of absent parties, to ensure that there is a proper basis for the surveillance sought. The judge carefully explores all the constitutional and statutory questions presented by what is being sought—always mindful of this special duty to absent parties. The court views the personal accountability of the Attorney General and the head of the investigative agency for each request made to the court as a way to ensure that everything we see is well scrubbed before it is presented to the court.

I believe that the variety of judges who have now served on this court—Democrats and Republicans, conservatives and liberals, from east and west and north and south—has been a real strength of this court in demonstrating that when we approve a surveillance request there really is a valid national security basis for this surveillance. And that it is not being done for some improper political motive. What we add to the process is some assurance to the public that there is a valid national security reason for the surveillance.

Q: Amendments were made to the FISC statute following 9-11. Can you tell us how these amendments affected the court and its workings?

A:The impact of the amendments to the statute remains to be seen. The increase in the membership of the court has enabled us to go to weekly sittings. Additionally, in certain emergencies the Attorney General can place surveillance for 72 hours. Prior to the amendments he could only do it for 24 hours, if he immediately provides notification to the court that he is exercising his emergency power. This has somewhat reduced the number of Saturday and Sunday hearings and some late nights because you don't have to get the paperwork to the judge within 24 hours. Additionally some surveillance periods are extended, so renewals will not have to be presented as often as before and ultimately that will reduce the numbers the court has to review. Some of the periods went from 45 to 90 days for searches, some of the periods of electronic surveillance, if you were an officer of a foreign power, went from 90 days to a year.

Q:As a judge in the District Court for the District of Columbia, you've had considerable experience with spy and terrorism cases. How does a judge conduct a trial in which national security may be at odds with a defendant's right to a fair trial?

A:I have found the Classified Information Procedure Act to provide all the tools that I have needed as a district judge to successfully navigate the tricky questions presented in spy cases, as well as terrorist cases. The Act provides the necessary framework for the judge to protect information that is vital to our national security and at the same time ensure that the criminal defendant is given access to the information needed for his defense. Sometimes this may be substitute information that deletes certain details to protect intelli- gence sources and methods, but I have not yet seen a case where I was unable to ensure a fair trial. For example, the fact that we have a CIA station in a particular country is probably classified because it would impair our foreign relations with that country if we admitted that we had a station. But if in your trial, all you say is, "A CIA station in a foreign country, or even in a Latin American country," you give the defendant everything he needs, and yet you protect your classified information.

The statute really works wonders. In one of the Iran Contra trials, the head of operations for the CIA said he needed to use in his defense every deepest, darkest secret our country ever had. I was able to successfully get through that trial. It took 50 opinions that were classified top secret at the time they were issued, but I got through it.

Q:I've heard of unpublished opinions, but top secret opinions? What becomes of the court's decisions? Are they published?

A:Virtually all orders and opinions of the FISC are classified. Many of my district court opinions in spy and terrorist cases have been initially classified, pursuant to the Classified Information Procedure Act, but the vast majority have subsequently been declassified and made publicly available with only words and phrases and sometimes footnotes redacted. So large portions of those are all on the public record now, even though they initially were classified.

Q:Can the war on terrorism be fought through the federal courts? And how do you weight national security against a defendant's rights?

A:Ultimately the defendant's right to a fair trial trumps everything. If he cannot be assured his right to a fair trial, if the government wouldn't disclose the information, the case would have to be dismissed. That's what the Classified Information Procedure Act provides. I've tried several terrorists now, and I have always found that in every instance, the defendant's rights could be protected, with the information he really needed in his defense.

I think the war on terrorism cannot be won in the courts. But I think the courts have an important role in ensuring, as we fight the war on terrorism, that we don't lose the rights of our own citizens, and that we don't hamstring our intelligence agencies so that our nation cannot survive.

Q:How do you maintain two separate yet very active and demanding dockets—one as a federal trial judge and the other as presiding judge of FISC?

A:The period since 9-11 has been the most difficult of my judicial career. Serving on the FISC is time consuming, but it just happens that since 9-11 the FISC has been a very onerous process. Actually, the amendments adding new judges, and saying three of the judges have to be within 20 miles of D.C. probably will turn out to be beneficial, because you can share around the emergency duties better. With three judges on the court nearby, it will ease that somewhat.