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The Role of the Judiciary in the War on Terrorism
This speech was given by Judge Royce Lamberth, former presiding judge of the United States Foreign Intelligence Surveillance Court, to the University of Texas Law Alumni Association on April 13, 2002. Lamberth is the only FISA Court judge ever to have spoken publicly about the court. In this speech, he describes the FISA process and the changes to the law after the passage of the Patriot Act. He also discusses how FISA was used in the investigations of CIA mole Aldrich Ames and FBI spy Robert Hanssen. Also included in this transcript is a question and answer session at the end of the speech.

The FISA Court is probably the least known court in Washington, but it has become one of the most important, especially now as we combat our hidden enemies in the war on terrorism. I think my remarks today will be historic in one sense, and that's why C-Span is here, I suppose. I understand that I'm the only judge on the Foreign Intelligence Surveillance Court who has ever spoken in public about the court. I spoke to the ABA Standing Committee on Law and National Security in April of 1997. This is the first time since then that I have talked publicly about the court, so what you will hear today is only the second speech ever given by a member of the FISA Court. Of course, I have to be circumspect about what I can say about the court's operations, since the information we deal with in each case is always classified secret or top secret for national security reasons. But there are some things that I can say, and I hope you will find them informative and reassuring.

I would like to talk briefly about how national security electronic surveillances were conducted before the creation of the FISA Court and how the court came to be created in 1978. Warrantless electronic surveillances authorized by the attorney general apparently were begun before World War II by President Roosevelt, based on the president's inherent and constitutional power as commander in chief of the Armed Forces, chief executive officer, and his responsibilities to conduct the nation's foreign affairs. The U.S. intelligence agencies at that time provided targets for the attorney general's approval. Then during the Cold War years, these surveillances greatly expanded.

In a number of criminal prosecutions in the 1960s and the early 1970s, the government's warrantless electronic surveillance program came under judicial scrutiny, resulting in the Supreme Court's decision in US v. US District Court in 1972. The Supreme Court struck down warrantless electronic surveillance directed against domestic organizations, but the Supreme Court noted that it made no judgment with regard to the president's power to conduct electronic surveillance of foreign powers and their agents. The court went on to suggest that different standards might apply there. As a result of some of the investigations by congressional committees of intelligence abuses in the mid-1970s, the communications common carriers started refusing to carry out attorney general orders rather than court orders for electronic surveillances.

So finally, a reluctant Intelligence Committee decided to go along with the idea of creating a special court to issue warrants for electronic surveillances of foreign powers and their agents, and Congress enacted the Foreign Intelligence Surveillance Act in 1978, finally passing it in October of that year. The initial judges were cleared and appointed by Chief Justice Berger, and the court began its work on May 18, 1979. We still have our annual judicial conference on or about that date each year. The chief justice hosts us each year at the Supreme Court and I preside. All seven judges attend, along with the chief justice, the attorney general, and the directors of the CIA, FBI, and the NSA. These conferences will be always one of the highlights of my career as a judge.

The Foreign Intelligence Surveillance Court currently has seven judges appointed by the chief justice for seven year, non-renewable terms. Each has to be from a different circuit, so they're from all around the country. The terms are staggered, so we get one new judge each year. The variety of judges who have now served on the court -- Democrats and Republicans, conservatives and liberals, from east and west and north and south -- has been a real strength of the court in demonstrating that when we approve a surveillance request there really is a valid national security basis for the surveillance. Besides the certification of the applicable intelligence agency official and the affidavit of the investigating agent, we always have the personal approval of the attorney general or the acting attorney general as the last stop before the application is presented to us for approval.

The political accountability that the attorney general must personally assume for each surveillance is an important safeguard, and we consistently find the applications well scrubbed by the attorney general and his staff before they are presented to us. But we then have the investigative agent appear before us, under oath, for questioning. And frankly, as I told the ABA, those who know me know the chief justice did not put me on this court because I would be a rubber stamp for whatever the executive branch was wanting to do. I ask questions. I get into the nitty-gritty. I know exactly what is going to be done and why. And my questions are answered, in every case, before I approve an application. I know the same is true of each of my colleagues.

So I bristle at the suggestion in some quarters that we are rubber stamps for the government, because no applications have been formally denied in recent years. Some have been revised, some have been withdrawn and resubmitted with additional information, and the process is working. It is working, in part, because the attorney general is conscientiously doing his job, and his staff is, as well. I'm personally proud of what we're doing. And while I can't go into details, I will give you some examples that are now public.

I'm sure all of you recall the Aldrich Ames case, the CIA officer who was a Russian spy, and the key role the Foreign Intelligence Surveillance Court played in his case. The attorney general had also authorized physical searches of Ames's home, not pursuant to court order, that turned out to be very productive. Had Ames gone to trial, that would have been a hotly litigated issue. The president and the Congress wisely reacted by amending the statute to now require that physical searches for national security reasons also be authorized by the court. The court had authority all along to authorize physical entries to plant eavesdropping devices, but the court had never authorized physical searches for information. The amendment to the statute became effective just as I was appointed to the court in 1995, and Attorney General Reno presented to me at that time all physical searches that she had authorized for my review as to continuation. Many new legal questions were presented and resolved to the court's satisfaction.

I'm sure all of you also know about the case of Robert Hanssen, the FBI agent who was also a Russian spy, who was arrested last year. Again, the Foreign Intelligence Surveillance Court played a key role in his case. Because Hanssen was in the FBI's National Security Division and had unbelievable access to classified computer records, it took an extraordinary effort of typing on old-fashioned typewriters and stand-alone computers to bring that case to a successful conclusion without him finding out about our surveillance of him. Attorney General Ashcroft and I met on the day he took office to discuss the Hanssen surveillances. I had until then worked closely with Attorney General Reno and FBI Director Freeh on the matter. Attorney General Ashcroft was on David Letterman last Tuesday night, and he talked about how he learned about the Hanssen case on the day he took office. Needless to say, it was a sober beginning for a new attorney general.

Besides Russian and other spies, the FISA Court also handles a number of cases involving international terrorism. On the night of the bombings of the U.S. embassies in Africa I started the first emergency hearings in my living room at 3:00 a.m. From the outset the FBI suspected bin Laden, and the surveillances I approved that night and in the ensuing days and weeks all ended up being critical evidence at the trial in New York last year, in which several of bin Laden's associates were convicted on numerous charges relating to those bombings. One of them, Wadi El-Hage, lived in Arlington, worked in Ft. Worth, and is the cover story subject of this month's Texas Monthly that I got in my hotel room when I got in last night.

I should also tell you that the FISA Court has a special secured courtroom with the kind of walls that cannot be penetrated electronically, and we have a judges' chambers there that I use at the Justice Department Building a few blocks from my own courthouse.

Some emergencies I do in my courthouse chambers or at my home. Last Saturday afternoon, in fact, as I was cutting my grass at home, I had to stop to do seven emergency hearings with four carloads of agents. I love to tell the story of my wife Janice, who is here with me today. She has to go upstairs because she doesn't have a top-secret clearance. [Audience laughter.] My beloved cocker spaniel, Taffy, however, remains at my side on the assumption that the surveillance targets cannot make her talk. The FBI knows Taffy well. They frequently play with her while I read some of those voluminous tomes at home.

When New York attorney Lynne Stewart and others involved with Sheik Omar Abdel Rahman, who's in prison for life for his role in the 1993 bombing of the World Trade Center, were arrested last Tuesday after their indictment in New York on charges of helping pass unlawful messages to a terrorist group in a foreign country, it was publicly revealed that the surveillances there had all been conducted pursuant to orders of the Foreign Intelligence Surveillance Court. Because of sensitive attorney-client privilege questions presented in those surveillances, special minimization procedures were followed by the FBI, pursuant to the orders of the Foreign Intelligence Surveillance Court. I expect many of those questions will now be litigated in these criminal cases.

I have to say with some confidence, however, that every district court that has now reviewed an order of the Foreign Intelligence Surveillance Court in a subsequent criminal prosecution has upheld the action of our court, and every circuit court of appeals that has reviewed such a case has now done the same. The Supreme Court has never granted certiorari in such a case. So I say to you, this is a court we can be very proud of. We add a measure of protection that heretofore did not exist, to insure that national security surveillances are conducted for valid reasons, in the best interests of our nation and not for some political reason. And I think the independence of Article III judges appointed for life, whose only obligation is to do what's right, helps insure that our national security surveillances are properly conducted with appropriate safeguards for all our citizens. I don't know how a better system could be devised. And I said to the ABA in 1997 that the age of spying is not over and the age of terrorism is just dawning.

What words those were, five years ago. We're now well past the dawn. The security of our nation requires the surveillances that we are approving, in my view, and I personally am proud to be a part of this process and to be witness to the dedicated and conscientious work of the FBI, CIA, and Justice Department officials and agents who are doing a truly outstanding job for all of us.

There have been a number of substantive and technical amendments to the Foreign Intelligence Surveillance Act following the attacks on the World Trade Center and the Pentagon on Sept. 11 of last year. Although the effects of these amendments has not yet been fully determined, I'd like to mention several of the most significant changes.

First, agents of foreign powers who act in the United States as officers or employees of foreign powers are now subject to electronic surveillance and physical search for up to one year instead of the 90-day and 45-day requirements in the prior statute. Second, the senior government official certifying each electronic surveillance and physical search need only certify that the collection of foreign intelligence information is a significant purpose of the search or surveillance, instead of being the purpose. Third, intelligence officers who conduct FISA searches and surveillances may consult with the law enforcement officials to coordinate their investigations. Fourth, if the government can show that a target of electronic surveillance is taking defensive measures to thwart FBI surveillance, the court can direct the cooperation of unspecified common carriers to affect the surveillance -- i.e., a roving surveillance.

Fifth, the size of the court has increased from seven to eleven judges, and three must now be located within 20 miles of Washington, D.C. to ease the burden of emergency applications. Last, in certain emergency circumstances, the attorney general can immediately implement a surveillance by notifying the court and then presenting the written application within 24 hours. That time period is now extended to 72 hours in the Intelligence Authorization Act this year. If the application is not approved by a judge within that time period, the surveillance must be terminated and all copies sequestered. How well this provision will really work remains to be seen -- I now see everything in the 71st hour instead of the 23rd hour. But Attorney General Ashcroft has assured me that he is staffing up the effort, and I do hope to see improvement.

I will give you a short aside. We took a three day trip for a Bar dinner in New York in March. Over the course of the three days -- we went up on Friday for a Friday night Bar dinner and we were going to spend the weekend in New York -- over the course of the three days I had 11 emergency notifications by phone in New York, so as soon as I arrived back in Washington on Sunday night I had a busy evening. But with the 72-hour provision, at least they didn't have to fly to New York within the 24 hours, so the 72-hour provision probably will, in fact, help.

I also want to talk about another statute that Congress enacted, this one in 1980: the Classified Information Procedure Act, which we call CIPA. It will be extraordinarily useful as the courts struggle to deal with classified information that is involved in the terrorist cases that we now have, and those that are coming. I'd like to talk about the CIPA statute in connection with the case of U.S. v. Omar Mohammed Ali Rezaq, which I tried in my role as a district judge in the District of Columbia. Rezaq was convicted of air piracy resulting from his hijacking of an Egypt airplane in 1985, which was forced down in Malta. After gathering their passports, all of the Americans and Israelis on board were taken to the front of the plane and shot and thrown onto the tarmack. Egyptian commandos then stormed the plane, resulting in 57 deaths, the bloodiest hijacking in the history of the world.

Rezaq was released by Malta after serving only seven years, and the United States was able to get custody of him in Africa on July 15, 1993, when he was flown direct to Dulles Airport and arraigned before me on U.S. charges the next morning.

It turned out that we had extensive CIPA hearings, because of information derived from sensitive intelligence sources and methods. The defendant was never going to be cleared to participate in any CIPA hearings, so virtually everything I did there under CIPA was done ex parte. Everything was done on the record with a court reporter present, and I issued a number of written classified opinions, all of which were lodged with the Court of Appeals and all were classified either secret or top secret. The D.C. Circuit affirmed me and heartily endorsed the CIPA procedures that I followed, and I think they will, and my opinions there, will be a road map for judges with new terrorist cases now.

Indeed, since that kind of affirmance of me doesn't happen to me that often, I'm going to give you the exact quote from the D.C. Circuit. [Audience laughter.] The D.C. Circuit, at 134F 3rd 1121 at 1143 (CK) said "We find the District Court did a commendable job of discharging its obligations under CIPA, and in particular that its orders protected Rezaq's rights very effectively, despite the fact that Rezaq's attorney was unable to participate in the CIPA proceedings." I sentenced Rezaq to life in prison, a term that he's now serving in return for the agreement under which he came back to the country -- Attorney [General] Reno had to promise a foreign nation that the government would not seek the death penalty. So life was the maximum he could be given.

I currently have another terrorist case pending. Again, it's pre-9/11, and this case is the case of United States v. Mohammed Rashid, who's currently pending trial before me. Rashid is charged with placing a bomb on a 1982 Pan Am flight from Tokyo to Honolulu, killing one and wounding 15 passengers. He's also charged with conspiring to place a bomb on a Pan Am aircraft in Rio de Janeiro, a bomb that luckily was discovered and removed safely. I'm currently in the midst of CIPA hearings to determine the defendant's right to obtain materials related to the conditions under which he was held by foreign authorities before he was turned over to the FBI to be flown back to Dulles Airport for arraignment before me. Rashid made statements to the FBI agents on the plane that the government seeks to use at his trial.

Rashid wants to explore claims that he was tortured and drugged by foreign officials before he came into the FBI's custody, so there are many legal issues still to be resolved there. But again, I think CIPA provides a framework that will allow me to get through this thicket in a way acceptable to the D.C. Circuit. I'm not sure they'll find my actions commendable next time, but I'll be happy if they just aren't reversible.

There is another category of cases that I want to talk about, and that is those cases brought against terrorist states under the Foreign Sovereign Immunities Act. In 1996, Congress enacted what is commonly referred to as the Flatow Amendment that created a cause of action for United States nationals against foreign states and their agents that commit acts of terrorism or provide material support to individuals or entities that commit such acts. The Flatow Amendment is named after Alisa Flatow, who was a 20-year-old Brandeis University student spending a semester abroad in Israel was killed when a member of a faction of the Palestine Islamic Jihad drove a van loaded with explosives into the bus within which she was riding. Alisa Flatow's father, as administrator of her estate, filed a wrongful death suit in my court against the Islamic Republic of Iran, the Iranian Ministry of Information and Security, and two high ranking Iranian officials.

I presided over the case, and after conducting a trial in which none of the defendants entered an appearance, found by clear and convincing evidence that the Iranian officials had provided material support, and resources to Palestine Islamic Jihad by supplying funds and training for the faction's terrorist activities, and accordingly, I entered a judgment of default against the Iranian defendants and awarded both compensatory and punitive damages to the plaintiff. After I ruled that seized Iranian assets in the hands of the U.S. Treasury were not subject to attachment to satisfy the judgment in the Flatow case, Congress passed another statute to allow the estate of Alisa Flatow to recover compensatory, but not punitive damages, from the seized Iranian assets.

Since Flatow, numerous victims of terrorist attacks have now filed suit against the Islamic Republic of Iran and its agents under the Flatow Amendment to the Foreign Sovereign Immunities Act. I've presided over several of these cases now, including Jenko v. Islamic Republic of Iran, which involved Father Lawrence Jenko, who was held captive and tortured for more than a year in Lebanon by Hezbollah, Eisenfeld v. Islamic Republic of Iran, and Weinstein v. Islamic Republic of Iran, both of which involved, like Flatow, a bus bombing in Israel. In addition, I have several pending cases that involve terrorist acts, such as, for example, the attack on the Marine barracks in Beirut back in the mid-1980s. As a result of these and earlier cases, it's my view that lawsuits brought against state sponsors of terrorism will become, if it is not already, its own cottage industry in Washington, D.C.

Several criminal trials of terrorist and others are now scheduled. John Walker Lindh, the American who fought with the Taliban, is set for trial this summer before U.S. District Judge T.S. Ellis in Alexandria. Zacharias Moussaoui, the alleged 20th hijacker of 9/11, is set for trial in September before U.S. District Judge Leonie Brinkema in Alexandria. Robert Reid, the alleged shoe bomber, will be tried before U.S. District Judge William Young in Boston, which is where he was taken off a plane from London. A number of other indictments have been returned, many of which are still sealed until the defendant is in the custody of the United States. One that has been unsealed is the person in Pakistan alleged to be responsible for the death of Wall Street Journal reporter Daniel Pearl.

The federal courts are prepared for whatever comes our way in the war on terrorism, and I personally take great pride in the way we have responded. Thanks for letting me share these thoughts with you today. I've tried to speak plainly. I guess we'll find out how much trouble I've gotten in in the next few days. But I'll see if I can get in a little more trouble and take as many questions as you want to throw my way. If you'll step up to the microphone, they'll be able to record your questions. And don't be bashful; it's one of the few times you'll ever get to ask the judge a question. [Audience laughter.]

I guess I had been on the bench about a year when I had a young lawyer say to me, "Judge, are you going to give me a basis for that ruling?" [Audience laughter.] And I thought, you know, it was a little much for me, and I said, "You know, there aren't too many advantages being on this side of the bench, but one is I get to ask you questions; you don't get to ask me any." So when the Court of Appeals for the D.C. Circuit reversed and remanded for my statement of reasons, in their opinion -- they decided to teach a new judge a lesson -- and so in their opinion they put the whole exchange, NF 3rd (?), with the direct quote from the transcript, only they put "defense lawyer," not giving Patrick Donahue, his name. When I tell this story I always say "Patrick Donahue." They did put Judge Lamberth, to make sure everybody knew who the dumb judge was. [Audience laughter.] So I always like to say it is one of the few times you can ask a judge a question. So you lawyers have at it.

Q & A:

Q: Judge, let me ask you a question. My impression from looking at the way in which the War Crimes Tribunal is taking jurisdiction to try Milosevic and others; also, looking at the way in which England acted to deal with General Pinochet, and other instances of that type, is that there is kind of a slow erosion of concepts of national sovereignty. Also, some of the cases you've just mentioned, where the defendants are not residing in the country and were subjected to trial in their absence, and so forth. There has been some kind of a concept, that seems to evolving, of a kind of international jurisdiction or an international dimension to jurisdiction. I'd just like to have your comment on that as to whether this is a development that you see occurring, and if so, how do lawyers deal with that?

A: I think it's a real difficult problem because I think there are a lot of concerns about how far this should go. I think that the debate about this new International Court of Justice sort of tells you that whether the U.S. should participate or should not participate in that is still a very controversial issue, and I think there are lots of issues there. I think that for some time now though, our presidents -- and more than one -- have decided that it's in the national interests of the United States to try to prevent terrorism that affects Americans, even if the actions occur overseas, and that we would try to do something through the courts about these terrorist acts. And so we have set on a course as a nation, led by our president and endorsed by Congress, to try to deal with a lot of these questions in the judicial forums. Obviously, ultimately, that did not succeed, or we would not have had 9/11.

There are a lot of reasons for 9/11, and I sure don't want to get into all of those here. And in fact, there will be a huge investigation, I'm sure, at some point, of all of what led to what happened on 9/11. But I think we, as a nation, have thought it in our interest to pursue these terrorism cases through the courts, and in some ways, the courts can be a part of that solution. But it's like in the Iranian cases, where I have awarded these huge punitive damages against Iran: Iran, of course, will never recognize the need to pay any of those. The U.S. expects to assert those internationally as claims at the Hague. Whether those will ever lead to anything, I don't really know. But from the judicial branch's perspective, we really, in this area, are applying what we think are the laws as passed by Congress, as long as they're not unconstitutional.

In my opinion in the Flatow case, which is in 999 F. Supp. 1 (?), one, it's a lengthy opinion where I do go through and give in great detail why I think Congress had a constitutional basis for enacting this scheme. That's a question that's not free from doubt, and it's a question that I find somewhat troubling upon occasion, too, but I did rule that Congress had the power to do this, and I upheld the Congress's power in the Constitution to do it. Whether it's the wisest course, I guess, will remain to be seen when we see what finally happens from 9/11.

Q: Judge, you spoke about the orderly process by which we can handle these kinds of matters, whereby Congress has passed a statute, and your special court handles it. But I'd like to know what about the unexpected situation whereby you're doing a criminal trial, and the judge finds out that one of the elements that the defense is going to be raising is going to be something that might touch on national security, how does the federal judge handle that situation? One case in point would be like Noriega's trial, where he threatened to expose his secret dealings with the CIA and other organizations.

A: Well, I think that's part of the genius of this statute I called the Classified Information Procedure Act, because it allows the judge to look at everything-- the government has to produce everything in camera to the judge -- and the judge can look at it. And if the defendant really needs it for the defense of the case, then the judge rules that the defendant needs it and gives the government an opportunity to present a substitute version that would be unclassified. So for example, I tried one of the Iran-Contra defendants. He had been the head of operations for CIA. He knew every deepest, darkest secret our country's ever had, because he was head of operations for 20 years. So he said every one of those million secrets needed to be used in his defense. [Audience laughter.] So I spent weeks in CIPA hearings there, ruling. And a number of them, I did find he had a valid reason to use that information, but in every one, I gave the government an opportunity to propose a substitute. So instead of saying, "At a CIA station in a certain country," we could say, "At a CIA station in an unspecified country." Then it's not classified. We know we have CIA stations in countries. We just never admit we have one in a particular country, because we don't want that country to then raise up and say, "You've got to get it out." So we never officially admit -- even though everybody knows it -- you never officially admit certain things.

But you can do a substitute for a lot of this very easily to make it unclassified. Sometimes the government didn't give as much as I wanted. I would order them to do more. In the CIPA context, if the government doesn't agree with me and thinks it's important, they can take an appeal immediately in the Court of Appeals. In that case, ultimately I ruled in a way that the government could live with it, and we got through that trial. I really wanted to prove in that trial that CIPA could work no matter what kind of secret information was at issue, with even the head of our spies. And it worked, and I proved it would work.

I ended up writing 50 top secret opinions in that case. All of them have now been declassified; except for words here and there, all of them have now been declassified. And they do lay out a road map of exactly how to go through this process. So the defendant can get information they legitimately need for their defense, but it may be substituted information that leaves out the classified part. You could reach a case -- and there have been cases where judges have ruled that something was so critical to the defense that if the government wouldn't give it up, the case had to be dismissed. And we had a judge in Virginia that did that. The government ended up not appealing, and the case ended. The case was dismissed because there was a bit of information the defendant needed that was so critical that it could not go up.

One of the real CIPA experts for the government that handled that Noriega case -- he was a very bright guy; he's now on the Court of Appeals for the Federal Circuit; he's a UT graduate, Bill Bryson -- but he did a lot of that Noriega work on the CIPA hearings, and I think that's how they successfully got through that thicket in Noriega.

So I think those cases can be handled. And I think the current cases that are coming along now -- Moussouai, Lindh, some of these cases we're going to have now -- there will be classified information in them. There's no question about it. And there will be a need to deal with those kinds of questions, and you raise a good point.

Q: Judge ... I wanted to ask you a broader question. That is to say, given all the knowledge you have, terrorism, I guess, by definition, is dealing with a sort of lawlessness and a ruthlessness and a willingness not to obey any sort of law whatsoever, even any rules. And what you're doing is trying to bring law -- our law -- applicable to these acts. And given that construct, and also that conflict, how comfortable do you really feel knowing what you know about the other side, that this experiment, in dealing with terrorism as we know it, can succeed in eliminating it or reducing it?

A: Well, I think it's clear in light of 9/11 that what we have been doing did not succeed. And the president concluded that when he decided to start the bombing in Afghanistan and take the other actions he has. I think that what's important that I'm trying to do on the Foreign Intelligence Surveillance Court is even though we're at war against an unknown enemy and we're fighting with terrorism around the world -- not just in Afghanistan, but in many other countries -- we always have to remember that within the United States we have to protect our own rights. We don't want to give up our rights, even though we're at war.

And I think the importance of the Foreign Intelligence Surveillance Court is to ensure that the rights of unsuspecting Americans that might be subject to surveillances is always protected, so that if there is a surveillance being conducted in the United States, we're protecting the rights, we're making sure that there's not any improper motivation, that the information is needed and that there's some basis to think that the person who's targeted is acting as the agent of a foreign power. Our standard is probable cause that you're acting as the agent of a foreign power. So the FBI basically has to come in and we get lengthy affidavits with all the circumstantial evidence that indicates that the person may be acting as the agent of a foreign power.

But we are not going to solve the war on terrorism through the courts, and I think that that's why -- I don't want to get into any of the political discussion, because as a judge it would be incorrect to do that -- but I think that the president has recognized that we've got to do a lot more than we've been doing, and that's why he embarked on the campaign, and I think that's why he has so much support among the American people about the campaign for the war on terrorism. It will not be solved in the courts.

But the courts can do our part, especially in the surveillances. You know, we don't want to give any tips to the other side about our surveillances, but we get useful information. We wouldn't be spending all the money we're doing to do this if we weren't obtaining useful information in these surveillances. At the same time, I've had a number of sessions with Director Freeh and now with Director Mueller about what are we doing on human intelligence?

You know, ultimately, human intelligence is part of what you have to do to be able to win this kind of a war. And electronic surveillance and physical searches are part of it, but there's a much broader picture. All I can say is on the small cog that I have in the wheel, I think we're doing well. I think we're doing the kinds of things we should be doing as a nation. I think our citizens should have some assurance that we're doing the right things, that we're not going overboard in terms of these kinds of surveillances. We're trying to follow the law. And I think to the extent that I, as an independent judge, can say that to the American people, it's important that they hear it.

Q: Judge, on a broader question, with respect to the federal judiciary overall, and getting more judges on the bench rather than waiting for hearings, what comments you have on that?

A: Well, we have a process. The president nominates, the Senate advises and consents. I went through that process and it drug out for some time when I was nominated, and thanks to people like Tom Sussman, I made it through. There is a process, and sometimes it goes shorter and longer, and it depends upon too many factors beyond my control to say. The chief justice made a strong comment in his State of the Judiciary speech last year, and then again on this year on January first, about the need to fill vacancies and the hardship on the federal courts when we are down people and don't have vacancies filled. And I certainly agree with what the chief justice has said. But it's a political process to get on the court. Once you get there, then I'm not going to talk about anything politically. [Audience laughter.] At least not here. [Audience laughter.]

Q: Judge, a two-part question. As closely as you work with these people, how does it affect your independence and impartiality? Could you sit in a trial that you passed on the preliminary hearings on?

A: On a wiretap application? Well, different courts have different practices. In our court I would not, and I have not. We have a practice where we rotate who does Title III wiretaps for criminal purposes. And if I'm the judge that did the Title III, I don't try the criminal case either. So in our court, we would not have the same judge do that.

Across the river in Alexandria it's a smaller court with less judges. Their judges will do the whole show. So a judge who actually did one of the FISA surveillance warrants also passed on the legality of it in the criminal case, upheld it, to no one's surprise [audience laughter], and tried the criminal case. He was affirmed by the Fourth Circuit, and if I did that in the D.C. circuit, I don't think I would get one of those letters of commendation. [Audience laughter.]

Q: But you work day-in and day-out with the same people, obviously?

A: You do.

Q: And it would seem to me that it would ultimately become uncomfortable in denying what they want.

A: Well, I think that's part of why it's a seven year, non-renewable term, is that Congress was worried that you might get too cozy with those intelligence agencies. So when my term expires, I will rotate off.

The greatest advantage to me of being a district judge, and one reason I get up and go to work every day and love it, is I don't have to satisfy a client, I don't have to charge hours, I don't have to write down my hours, and I just do what I think is right. And I have this personal satisfaction of always being able to just do what I think is right that I think is the greatest advantage of a lifetime appointment as a district judge, so that even if I work with somebody closely --I mean those who know me know that I holler at the people close to me, too. [Audience laughter.] I won't comment on my wife, but--

Q: Does the dog ever dissent?

A: The dog never dissents. The dog -- it's perfect.

[END OF Q & A]

MIKE PERRON: Judge, you've honored us with your presence today. Thank you. [Audience applause.]

Judge, thank you for a very stimulating presentation, and thank you for the questions from the floor.

[Reprinted with the permission of the University of Texas School of Law]

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posted october 16, 2003

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