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FRIDAY, AUGUST 23, 2002

In one of his final rulings as head of the federal government's ultra-secretive national security court, U.S. District Judge Royce C. Lamberth blasted the Department of Justice and the FBI for submitting "erroneous" information in at least 75 cases.

A newly released opinion by the Foreign Intelligence Surveillance Act (FISA) Court recounts numerous incidences where it was misled by federal officials who sought permission for wiretaps and search warrants. There were "omissions of material facts," misuses of sensitive information and violations of judicial orders, Lamberth wrote.

"In virtually every instance, the government's misstatements and omissions in FISA applications and violations of the court's orders involved information sharing and unauthorized disseminations," the opinion stated.

According to the court, DOJ and FBI are investigating the mishaps, but neither agency has provided any answers. "As of this date, no report has been published, and how these misrepresentations occurred remains unexplained to the court," Lamberth wrote.

The extraordinary decision was issued May 17 and joined by the six other FISA judges. Lamberth stepped down as presiding judge of the court shortly thereafter and was replaced by U.S. District Judge Colleen Kollar-Kotelly, who released the opinion to the Senate Judiciary Committee.

Sen. Patrick Leahy (D-Vt.), chairman of the committee, said the public disclosure was a "ray of sunshine from the judicial branch [and] remarkable step forward for constructive oversight."

The effect of the ruling was to reject DOJ's attempt to expand its powers. The Bush administration, in order to implement the new Patriot Act, asked that criminal prosecutors be allowed blanket access to information gained from national security investigations.

Normally, there is a barrier between the two -- law enforcement and intelligence gathering -- called a "wall." The court generally has to approve sharing of information across the wall.

But, citing the "alarming" history of abuse during the Clinton administration in which the barrier was knowingly violated, Lamberth said the sharing proposal was "not reasonably designed" to fulfill the goals of FISA. "In either case," the opinion stated, "the procedures cannot be used by the government to amend the Act in ways Congress has not."

The Bush administration adhered to the order. But the DOJ in a statement yesterday disagreed with Lamberth's analysis. An appeal of the ruling was also made to a secret appeals court.

"We believe the court's action unnecessarily narrowed the Patriot Act and limited our ability to fully utilize the authority Congress gave us," the DOJ said.

The court delayed potential punishment of those who made erroneous statements in order to let DOJ and FBI carry out its internal probes. Already, one FBI agent has been permanently barred from submitting information to the court.

Lamberth has occasionally referred to the FISA court during proceedings in the Cobell Indian trust fund case, which also includes numerous instances of government misrepresentations. He delayed hearings due to last minute national security matters.

In publicized statements made in April, Lamberth spoke about his role as presiding judge. According to a New York Times report, he said the court existed to ensure "that national security surveillances are conducted for valid reasons in the best interest of our nation and not for some political reasons."

FISA created the court in 1978. New amendments to the law expanded the number of judges from seven to 11.

Get the Ruling:
In Re All Matters Submitted to the Foreign Intelligence Surveillance Court (5/17)

Relevant Links:
U.S. District Judge Royce C. Lamberth - http://www.dcd.uscourts.gov/lamberth-bio.html
Foreign Intelligence Surveillance Act, FAQ - http://www.eff.org/Censorship/Terrorism_militias/fisa_faq.html

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Anti-terrorism bill expands police powers (10/4)