Re: OT: FISA Court Judge Gets It
- From: The Librarian <zootwoman@xxxxxxxxx>
- Date: Mon, 25 Jun 2007 02:45:53 -0000
On Jun 24, 7:24 pm, flipper <flip...@xxxxxxxx> wrote:
On Sun, 24 Jun 2007 16:14:44 -0500, timepixdc <timepi...@xxxxxxxx>
A federal judge who used to authorize wiretaps in terrorist and
espionage cases criticized President Bush's decision to order
warrantless surveillance after the Sept. 11 attacks.
Royce Lamberth, a district court judge in Washington, said Saturday it
was proper for executive branch agencies to conduct such surveillance.
"But what we have found in the history of our country is that you can't
trust the executive," he said at the American Library Association's
"We have to understand you can fight the war (on terrorism) and lose
everything if you have no civil liberties left when you get through
fighting the war," said Lamberth, who was appointed by President Reagan.
The judge disagreed with letting the executive branch alone decide which
people to spy on in national security cases.
"The executive has to fight and win the war at all costs. But judges
understand the war has to be fought, but it can't be at all costs,"
Lamberth said. "We still have to preserve our civil liberties. Judges
are the kinds of people you want to entrust that kind of judgment to
more than the executive."
But of course. After all, the President is only elected by the people
while the judge is appointed and totally unaccountable nor directly
responsible for a blessed thing.
Lamberth was named chief of the Foreign Intelligence Surveillance Court
in 1995 by then-Chief Justice William H. Rehnquist. Lamberth held that
post until 2002.
The Foreign Intelligence Surveillance Act of 1978 established the court
after domestic spying scandals in the 1970s.
The court meets in secret to review applications from the FBI, the
National Security Agency and other agencies for warrants to wiretap or
search the homes of people in the United States in terrorist or
espionage cases. Each application is signed by the attorney general. The
court has approved more than 99 percent of them.
- Associated Press- Hide quoted text -
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Why federal judges are appointed and note to Flipper that not all
Judges are appointed and how they are held accountable
Decisional accountability concerns the manner in which judges are held
accountable for rulings and decisions. While this principally takes
place through appellate review, it also includes academic criticism of
judicial actions. However, I question the extent to which most state
court judges are concerned about academic reaction to their work. Most
voters, including the lawyers who vote, do not read law review
articles and case notes. I do not know of any judicial election
campaigns that have featured scholarly reviews of a judge's decisions.
Thus, apart from appellate review, decisional accountability occurs
mainly in two sensitive places: legislative power to appropriate
funding for the courts being manipulated in response to unpopular
decisions and rulings, and media criticism of judicial decisions and
rulings by politicians and at the grassroots level.
Behavioral accountability involves judicial conduct made the subject
of disciplinary proceedings. Although appellate review occasionally
includes criticism of judicial behavior and, on rare occasions, has
resulted in sanctions such as reassignment of a case to another judge
due to misbehavior, bias, or prejudice, judicial disciplinary
proceedings outnumber these situations.
I am particularly concerned about the interplay between decisional and
behavioral accountability in the context of judicial disciplinary
proceedings. For example, Senator Robert Dole called for the
impeachment of Judge Harold Baer of the Southern District of New York
after the judge suppressed evidence of cocaine seized by New York City
police officers. The Clinton White House suggested that Judge Baer's
resignation would be sought if he did not reverse the ruling.
Naturally, Judge Baer reversed himself. Similarly, former Justice
Penny White of the Tennessee Supreme Court faced virulent opposition
following an opinion reversing a homicide conviction; the criticism
resulted in her defeat in a retention election. Character
assassination and demagoguery have been targeted at judges who vote to
overturn convictions in capital cases, against judges who are viewed
as "soft on crime," against judges who are castigated as either
enemies of the unborn or a woman's right to choose abortion, and
against judges who rule in favor of unpopular causes. The attacks are
likely to intensify as more litigation is being shifted to state
Judges are sitting ducks when attacked because of our decisions. While
Judge Baer enjoyed life tenure, that did not preclude the possibility
that he could have been made the subject of a judicial disciplinary
complaint. Had such a complaint been made, it would, one hopes, have
been summarily dismissed because it involved a matter that was subject
to appellate review. Nevertheless, Judge Baer would have been forced
to spend personal funds, take time away from his court duties, and
suffer the distraction of press reports about the pending complaint.
I agree, therefore, with Professor Lubet that the most serious threat
to the judicial independence of state court judges is the imposition
or threat of sanctions based on a judge's decision. If the California
Commission on Judicial Performance files a formal charge against
Justice Anthony Kline of the California Court of Appeals based upon a
dissenting opinion, Justice Kline could potentially be removed from
the bench for stating his good faith views about the law. Such a use
of judicial disciplinary proceedings clearly poses the danger that
judges must yield to what Professor Lubet terms "a judicial
State court judges have always been mindful of the potential for
political defeat due to public displeasure with our rulings and
opinions. Now we must also contend with the prospect of defending
ourselves in disciplinary proceedings based on allegations that our
rulings and opinions demonstrate misconduct in office. Nothing
prevents a political officeholder, political opponent, interest group,
or disgruntled litigant from filing such charges. When and if they are
filed, the targeted judges must finance their defenses with personal
funds. They cannot engage in fundraising efforts to underwrite the
cost of defending their conduct. Additionally, the fact that charges
are pending against a judge can be used in campaign material by
opponents or in retention elections. If I may appropriate the
marvelous metaphor used by the late Justice Otto Kaus of the
California Supreme Court (mentioned by Professor Gerald Uelmen in his
article on maintaining the independence of state supreme courts in an
era of judicial politization4), the specter of judicial disciplinary
proceedings arising from decisional conduct is another "crocodile in
the bathtub" that is hard not to think about as we state judges shave
or put on our makeup. It is even harder not to think about when one
realizes that one must take a shower or bath. For sitting ducks,
crocodiles in the bathtub are more than causes for intellectual
I am now reading two powerful books: Taylor Branch's Pillar of Fire,
the second part of his trilogy on the civil rights era during the King
years, and Juan William's Thurgood Marshall: American Revolutionary.
One striking feature in both books is that although state court judges
had the first opportunities to provide relief for civil rights
violations, they almost never granted relief. What comes through these
works is a picture of state court judges who were timid,
unimaginative, and, in some instances, even disdainful of the
arguments put forward by those who attacked racial segregation in our
nation. If the fear of electoral defeat alone can produce such
timidity, I cannot pretend that the prospect of being charged with
misconduct and forced to finance one's defense will not add to it. I
do not summarily dismiss the notion that judicial disciplinary
proceedings will become the favored stalking ground against judges who
render unpopular decisions.
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- From: timepixdc
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