There are people who ought to be resigning over the president’s decision to violate the Foreign Intelligence Surveillance Act and engage in warrantless spying on American citizens. And then there’s U.S. District Judge James Robertson, who resigned from the Foreign Intelligence Surveillance Court this week. Robertson isn’t talking to the press, but two “associates” of the judge tell the Washington Post that he resigned in protest of George W. Bush’s warrantless spying program.
The problem for Robertson and other members of the secret Foreign Intelligence Surveillance Court: They don’t know whether the warrants they’ve been issuing over the last three years have been based on evidence obtained illegally through warrantless spying approved under the president’s plan.
It’s a “fruit of the poisonous tree” sort of argument. The police aren’t supposed to be able to use the fruits of an unlawful search or seizure as the basis for a lawful one, and neither are federal intelligence agents. The Post says Judge Colleen Kollar-Kotelly, who presides over the Foreign Intelligence Surveillance Court, raised this concern in 2004 with respect to the warrantless spying program, insisting that the Justice Department tell the court whenever it was seeking a warrant based on information it obtained through a prior, warrantless spying session. It’s unclear whether the Justice Department ever provided such certifications, or whether the judges had any way of verifying them if they did.
“They just don’t know if the product of wiretaps were used for FISA warrants — to kind of cleanse the information,” one source tells the Post. “What I’ve heard some of the judges say is they feel they’ve participated in a Potemkin court.”