On Thursday morning, the Washington Post published an article (“Surveillance Court Is Seeking Answers–Judges Were Unaware of Eavesdropping“) that is jaw-dropping in the matter-of-factness with which reports on an outrageous impropriety by at least two FISA court judges.
The backdrop is that of the eleven judges who sit on the special court created by the 1978 Foreign Intelligence Surveillance Act, only one, Chief Judge Colleen Kollar-Kotelly, was briefed by administration officials about the NSA’s warrantless eavesdropping program prior to its exposure last month by the New York Times. At least some of the other judges are upset about this. Consequently, the administration has evidently agreed to brief the full court next Monday.
The paragraph that will be stunning to litigators and honorable federal judges (who, fortunately, constitute the vast majority of the bench) is the following:
Some judges who spoke on the condition of anonymity yesterday said they want to know whether warrants they signed were tainted by the NSA program. Depending on the answers, the judges said they could demand some proof that wiretap applications were not improperly obtained. Defense attorneys could have a valid argument to suppress evidence against their clients, some judges said, if information about them was gained through warrantless eavesdropping that was not revealed to the defense.
This is eye-popping on several different levels.
First of all, judges speaking to the press regarding matters that may end up in litigation is always a major impropriety, regardless of what kind of matters are involved. Canon 3 of the federal Code of Judicial Conduct expressly admonishes: “A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge’s direction and control.” This is so elementary to fairness and impartiality–the hallmarks of the judicial function–that it is almost surprising to find a rule about it.
But let’s leave that aside for a second. These are the judges of the FISA court. Of the hundreds of federal judges in the United States, there are, as already noted, less than a dozen specially chosen for these weighty responsibilities. They are selected largely because they are thought to be of unquestionable rectitude, particularly when it comes to things like leaking to the press.
To find federal FISA court judges leaking to the Washington Post about an upcoming closed meeting with administration officials about the highest classified matters of national security in the middle of a war is simply shocking.
Even more mind-blowing, though, is to find them discussing what they see as the merits of the issue. Without having heard any facts or taken any submissions on the governing law–and in the cowardice of anonymity–here they are speculating for the media about what positions they might take depending on how the administration answers their questions. Here they are preliminarily weighing in on the validity of defense claims in cases where FISA evidence was introduced. This is an inexplicable judicial misconduct.
If a judge pulled a stunt like this in a run-of-the-mill criminal case, it would be grounds for his removal. To have FISA court judges doing it is astounding. The administration would be well within its rights to decline to provide the briefing the FISA court has asked for–at least until the judges who spoke anonymously to the press come forward and explain themselves (if there can be any explanation for this).
A major problem of the whole FISA enterprise is the questionable constitutionality (not to mention the wisdom) of Congress’s delegating judges–who have no particular expertise by virtue of being judges–to exercise what are executive-branch national-security powers.
Regardless of what you think of FISA, though, judges who leak anonymously to the press on matters of this nature are unfit to sit on a national-security court.
–Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.