Warnings of tainted information by two judges on illegal Bush spying

By Carol D. Leonnig
Washington Post Staff Writer
Thursday, February 9, 2006; A01

Twice in the past four years, a top Justice Department lawyer warned
the presiding judge of a secret surveillance court that information
overheard in President Bush's eavesdropping program may have been
improperly used to obtain wiretap warrants in the court, according to
two sources with knowledge of those events.

The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly
-- who, like her predecessor, Royce C. Lamberth, had expressed serious
doubts about whether the warrantless monitoring of phone calls and
e-mails ordered by Bush was legal. Both judges had insisted that no
information obtained this way be used to gain warrants from their
court, according to government sources, and both had been assured by
administration officials it would never happen.

The two heads of the Foreign Intelligence Surveillance Court were the
only judges in the country briefed by the administration on Bush's
program. The president's secret order, issued sometime after the Sept.
11, 2001, attacks, allows the National Security Agency to monitor
telephone calls and e-mails between people in the United States and
contacts overseas.

James A. Baker, the counsel for intelligence policy in the Justice
Department's Office of Intelligence Policy and Review, discovered in
2004 that the government's failure to share information about its
spying program had rendered useless a federal screening system that the
judges had insisted upon to shield the court from tainted information.
He alerted Kollar-Kotelly, who complained to Justice, prompting a
temporary suspension of the NSA spying program, the sources said.

Yet another problem in a 2005 warrant application prompted
Kollar-Kotelly to issue a stern order to government lawyers to create a
better firewall or face more difficulty obtaining warrants.

The two judges' discomfort with the NSA spying program was previously
known. But this new account reveals the depth of their doubts about its
legality and their behind-the-scenes efforts to protect the court from
what they considered potentially tainted evidence. The new accounts
also show the degree to which Baker, a top intelligence expert at
Justice, shared their reservations and aided the judges.

Both judges expressed concern to senior officials that the president's
program, if ever made public and challenged in court, ran a significant
risk of being declared unconstitutional, according to sources familiar
with their actions. Yet the judges believed they did not have the
authority to rule on the president's power to order the eavesdropping,
government sources said, and focused instead on protecting the
integrity of the FISA process.

It was an odd position for the presiding judges of the FISA court, the
secret panel created in 1978 in response to a public outcry over
warrantless domestic spying by J. Edgar Hoover's FBI. The court's
appointees, chosen by then-Chief Justice William H. Rehnquist, were
generally veteran jurists with a pro-government bent, and their
classified work is considered a powerful tool for catching spies and

The FISA court secretly grants warrants for wiretaps, telephone record
traces and physical searches to the Justice Department, whose lawyers
must show they have probable cause to believe that a person in the
United States is the agent of a foreign power or government. Between
1979 and 2004, it approved 18,748 warrants and rejected five.

Lamberth, the presiding judge at the time of the Sept. 11 attacks, and
Kollar-Kotelly, who took over in May 2002, have repeatedly declined to
comment on the program or their efforts to protect the FISA court. A
Justice Department spokesman also declined to comment.

Both presiding judges agreed not to disclose the secret program to the
10 other FISA judges, who routinely handled some of the government's
most highly classified secrets.

So early in 2002, the wary court and government lawyers developed a
compromise. Any case in which the government listened to someone's
calls without a warrant, and later developed information to seek a FISA
warrant for that same suspect, was to be carefully "tagged" as having
involved some NSA information. Generally, there were fewer than 10
cases each year, the sources said.

According to government officials familiar with the program, the
presiding FISA judges insisted that information obtained through NSA
surveillance not form the basis for obtaining a warrant and that,
instead, independently gathered information provide the justification
for FISA monitoring in such cases. They also insisted that these cases
be presented only to the presiding judge.

Lamberth and Kollar-Kotelly derived significant comfort from the trust
they had in Baker, the government's liaison to the FISA court. He was a
stickler-for-rules career lawyer steeped in foreign intelligence law,
and had served as deputy director of the office before becoming the
chief in 2001.

Baker also had privately expressed hesitation to his bosses about
whether the domestic spying program conflicted with the FISA law, a
government official said. Justice higher-ups viewed him as suspect, but
they also recognized that he had the judges' confidence and kept him in
the pivotal position of obtaining warrants to spy on possible

In 2004, Baker warned Kollar-Kotelly he had a problem with the tagging
system. He had concluded that the NSA was not providing him with a
complete and updated list of the people it had monitored, so Justice
could not definitively know -- and could not alert the court -- if it
was seeking FISA warrants for people already spied on, government
officials said.

Kollar-Kotelly complained to then-Attorney General John D. Ashcroft,
and her concerns led to a temporary suspension of the program. The
judge required that high-level Justice officials certify the
information was complete -- or face possible perjury charges.

In 2005, Baker learned that at least one government application for a
FISA warrant probably contained NSA information that was not made clear
to the judges, the government officials said. Some administration
officials explained to Kollar-Kotelly that a low-level Defense
Department employee unfamiliar with court disclosure procedures had
made a mistake.

Kollar-Kotelly asked Defense Secretary Donald H. Rumsfeld to ensure
that wouldn't happen again, government officials said.

Baker declined to comment through an office assistant, who referred
questions about his FISA work to a Justice Department spokesman.
Pentagon spokeswoman Cynthia Smith also declined to comment and
referred questions to Justice officials. Justice spokesman Brian
Roehrkasse said the department could not discuss its work with the FISA

"The department always strives to meet the highest ethical and
professional standards in its appearances before any court, including
the FISA court," Roehrkasse said. "This is especially true when
department attorneys appear before a court on an ex parte basis, as is
the case in the FISA court."

Shortly after the warrantless eavesdropping program began, then-NSA
Director Michael V. Hayden and Ashcroft made clear in private meetings
that the president wanted to detect possible terrorist activity before
another attack. They also made clear that, in such a broad hunt for
suspicious patterns and activities, the government could never meet the
FISA court's probable-cause requirement, government officials said.

So it confused the FISA court judges when, in their recent public
defense of the program, Hayden and Attorney General Alberto R. Gonzales
insisted that NSA analysts do not listen to calls unless they have a
reasonable belief that someone with a known link to terrorism is on one
end of the call. At a hearing Monday, Gonzales told the Senate
Judiciary Committee that the "reasonable belief" standard is merely the
"probable cause" standard by another name.

Several FISA judges said they also remain puzzled by Bush's assertion
that the court was not "agile" or "nimble" enough to help catch
terrorists. The court had routinely approved emergency wiretaps 72
hours after they had begun, as FISA allows, and the court's actions in
the days after the Sept. 11 attacks suggested that its judges were
hardly unsympathetic to the needs of their nation at war.

On Sept. 12, Bush asked new FBI Director Robert S. Mueller III in a
Cabinet meeting whether it was safe for commercial air traffic to
resume, according to senior government officials. Mueller had to
acknowledge he could not give a reliable assessment.

Mueller and Justice officials went to Lamberth, who agreed that day to
expedited procedures to issue FISA warrants for eavesdropping, a
government official said.

The requirement for detailed paperwork was greatly eased, allowing the
NSA to begin eavesdropping the next day on anyone suspected of a link
to al Qaeda, every person who had ever been a member or supporter of
militant Islamic groups, and everyone ever linked to a terrorist watch
list in the United States or abroad, the official said.

In March 2002, the FBI and Pakistani police arrested Abu Zubaida, then
the third-ranking al Qaeda operative, in Pakistan. When agents found
Zubaida's laptop computer, a senior law enforcement source said, they
discovered that the vast majority of people he had been communicating
with were being monitored under FISA warrants or international spying

"Finally, we got some comfort" that surveillance efforts were working,
said a government official familiar with Zubaida's arrest.