NSA surveillance program unlikely to jeopardize criminal cases

Lawyers who are defending suspects accused of involvement in terrorism against the United States have said that they may challenge the prosecutions on the grounds that some of the evidence against their clients was obtained illegally by the National Security Agency under its warrantless domestic surveillance program.

But the former chief judge of the court that oversees domestic intelligence-gathering said that the NSA's surveillance program probably won't jeopardize such criminal cases, because he thinks the government has been "very careful" to keep information gathered by the NSA separate from other evidence obtained through normal procedures using a warrant.

In rare public remarks on May 8, Judge Royce C. Lamberth said he believed that government lawyers had not used NSA intercepts of phone calls and e-mails inside the United States to build their terrorism cases. When Lamberth presided over the Foreign Intelligence Surveillance Court, which grants warrants for domestic wiretaps, he was the only member of the 11-judge panel to know the details of the NSA's domestic eavesdropping program.

His remarks raise the possibility that government prosecutors are shying away from information obtained by NSA eavesdroppers, evidence that could be excluded at trial if a judge decided it was illegally obtained.

Lamberth spoke at an intelligence conference in Bethesda, Md., about his work in presiding over civil terrorism cases. In a separate question-and-answer session, Lamberth told National Journal that although he was confident that the NSA program and criminal investigations hadn't been mixed, he couldn't be absolutely certain. Lamberth's seven-year term on the court expired in May 2002.

But in the early days of the program, just after 9/11, he reportedly expressed great concern about federal agents using NSA's information in their warrant applications, and he also questioned the legality of the program itself.

Without revealing any personal knowledge, Lamberth said that based on what he has read in news accounts, the NSA domestic eavesdropping program would "require some tweaking" to make it comport fully with the Foreign Intelligence Surveillance Act, the sole law governing electronic eavesdropping for intelligence purposes in the United States. The judge added, however, that he was "sympathetic" to the Bush administration's assertion that laying out the full details of the program to lawmakers could aid terrorists by revealing how the spying works.

Lamberth also said that the FISA court should not decide the NSA program's legality.

Legislation calling for the court's review, proposed by Senate Judiciary Committee Chairman Arlen Specter, R-Pa., showed that the lawmaker's "heart is in the right place," Lamberth said, but he added that the court had no legal basis upon which to evaluate the program.

Any number of other federal courts could get an opportunity to rule on aspects of the NSA program. "Many defendants are in the process of making requests to the government to determine if their clients were subject to NSA surveillance," said Daveed Gartenstein-Ross, a lawyer and counter-terrorism consultant who has followed the NSA program. "If [defendants] determine that they were subject to NSA surveillance," he said, "then challenges are going to be raised."

Offering some candid advice, Lamberth said, "The president would be a fool" to let a case go forward that relied on NSA-obtained evidence. If a judge ruled that the evidence was inadmissible, the ruling might not make the whole program illegal. But to defend the inclusion of the evidence, the government would have to disclose details about how the NSA spies in the United States -- disclosure that the administration adamantly wants to avoid.

Lamberth, an affable Texan appointed to the bench by President Reagan in 1987, proudly embraced his role in shaping terrorism case law, which he says has spawned "a cottage industry."

He has ruled, for instance, that the Iranian government, a state sponsor of the Hezbollah terrorist organization, is responsible for the deaths and injuries of hundreds of Americans, and he has ordered the Iranian government to pay hundreds of millions of dollars in damages. On his lapel, the judge wears a commemorative pin that shows the World Trade Center's twin towers in red, white, and blue, with the letters "FBI" at the base.

Lamberth was good-natured about the media's ongoing interest in the NSA's domestic activities. After his speech, listeners prodded the judge to talk about the program's inner workings. He declined, but laughed heartily and said, "I do know. I wish I didn't."