"They just don't know if the product of wiretaps were used for FISA warrants -- to kind of cleanse the information," said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. "What I've heard some of the judges say is they feel they've participated in a Potemkin court."

The President has not yet publicly reacted to Judge Robertson's resignation. He's probably glad, since it was Judge Robertson who halted the Administration's military tribanal proceedings at Guantanamo back in November, 2004,.

The 11 FISA Court judges are regular federal judges in their day jobs. Their work on the FISA Court, however, is the stuff of George Orwell. As I noted back in August, 2002, James Bamford, author of a book on the National Security Agency penned an op-ed for the New York Times, in which he wrote:

Today, like a modern Star Chamber, the F.I.S.A. court meets behind a cipher-locked door in a windowless, bug-proof, vault-like room guarded 24 hours a day on the top floor of the Justice Department building. The 11 judges (increased from seven by the U.S.A. Patriot Act) hear only the government's side.

Back then, a milestone was in the making, courtesy of former Attorney General John Ashcroft. A little background, from that time:

The FISA court has approved 10,000 interception requests in its twenty five year history. It has never turned one down. In the event it were to deny a request, there is a special FISA appeals court. It is the only appeals court in the country which has never heard a case.

The milestone was that the FISA appeals court, known as the FISA Review court, had been called into action for the first time in history, as a result of the lower FISA court taking the the FBI to task for mispresentations in 75 secret snoop applications. Ashcroft decided to appeal. The Court retaliated in August, 2002 by releasing its opinion (dated May, 17, 2002, available here pdf) to the Senate Judiciary Committee. As Bamford said,

"The release of the May 17 opinion (by the court's new presiding judge) to the Senate Judiciary Committee, and the committee's release of it to the public, can reasonably be seen as cries for help."

In the May, 17 opinion, the FISA court rejected the Justice Department's position that the Patriot Act allowed for the crumbling of the wall of separation between federal prosecutors and intelligence gatherers. The issue before it was:

"Does the USA Patriot Act remove or merely loosen previous constraints on the coordination between prosecutors and intelligence gatherers."

Why is the wall so important? As I wrote here,

In a nutshell, the FISA court was created to allow officials to obtain evidence pertaining to intelligence activities upon a less stringent showing than is required to get a search or surveillance warrant for criminal law violations. It required that the primary purpose of any application be to obtain intelligence information.

Along comes the draft of the Patriot Act. Ashcroft initially requested that the requirement that intelligence gathering be the primary purpose of the application be reduced to simply "a purpose" from "the primary purpose." Congress balked and a compromise was worked out. The final Patriot Act language (which is now law) requires FISA court warrants be issued only for applications that allege intelligence gathering is a "significant purpose" of the request.

Ashcroft's twisted interpretation of this change is that law enforcement purposes can now be the primary purpose of a FISA warrant request. And in May, 2002, he approved guidelines providing that prosecutors may "advise intelligence officials on the initiation, operation, continuation, or expansion of FISA searches or surveillance."

The lower FISA Court cried foul, finding that "such extensive collaboration would amount to law enforcement 'directing FISA surveillances and searches from start to finish,' which it considers illegal." The reason for the appeal of the FISA court's ruling is that "the FISA court based its decision on peripheral provisions of FISA left unchanged by the Patriot Act. The Justice Department asserts that FISA surveillance can now be used more extensively for law enforcement purposes" as a result of the new Patriot Act language.

As reported by Vanessa Blum at Legal Times,

In a scathing opinion made public Aug. 22, the FISA court struck down new DOJ protocols for communication between prosecutors and intelligence agents. Among the court's concerns: that the lax guidelines would allow prosecutors to spy on U.S. residents without demonstrating probable cause as required by law (my emphasis).....The ruling points to more than 70 cases in the late 1990s in which FISA judges were misled about coordination between law enforcement and intelligence agents.

More from Blum:

The sticking point is that FISA surveillance is supposed to be used "for the purpose of obtaining foreign intelligence information." A less rigorous standard of evidence is used to authorize a search or surveillance under FISA than is used by federal trial court judges to weigh the validity of searches and surveillance in mainstream criminal cases.

Under the March 2002 guidelines approved by Attorney General John Ashcroft, prosecutors would be permitted to "advise intelligence officials on the initiation, operation, continuation, or expansion of FISA searches or surveillance." According to the lower FISA court, such extensive collaboration would amount to law enforcement "directing FISA surveillances and searches from start to finish," which it considers illegal.

In other words, the Justice Department, under Ashcroft, engineered a compromise for FISA surveillance in the Patriot Act, and then pulled a bait and switch. Blum reports Georgetown Law Professor Jonathan Turley's reaction:

"The whole point of that compromise [with Congress] was to deny use of FISA in investigations that were principally law enforcement," says GWU's Turley. "After agreeing to compromise in congressional proceedings, they went on in secret to implement what was originally refused by Congress."

My shorter version:

Justice is attempting an end-run around our contstitutional right to be free from unreasonable searches and seizures and the Fourth Amendment's and Title III's strict warrant requirements.

In other words, if the government gets a FISA court warrant, they don't have to show either probable cause of the commission of a crime or probable cause that evidence of a crime is likely to be uncovered by the intrusion. In a criminal court, such a showing would have to be made before the government could search our homes or businesses or wiretap our phones.

Ultimately, the secret FISA review court (before which only the Government was allowed to appear to argue the case) reversed the FISA court order and ruled in favor of the Justice Department. Attorney John Cline, who wrote the amicus brief for the National Association of Criminal Defense Lawyers, said at the time the brief was filed:

"FISA was designed to allow a lower standard for searches in foreign intelligence cases," said Cline. "Previously, FISA searches, which do not require traditional warrants based on probable cause, took place only under the direction of foreign intelligence agents. Criminal investigators were called in only when the searches led to incidental discovery of ordinary criminal activity.

"Now, the Justice Department's interpretation of the amendments to FISA allow supervision of the relaxed-standard searches by regular criminal investigators if they can claim any non-trivial connection to foreign intelligence," Cline said. "It allows for greatly broadened use of FISA searches in cases where normal Fourth Amendment protections should apply."

To ordinary citizens, particularly those who do business internationally, that means that criminal investigators can eavesdrop on their conversations or search their businesses, homes, phone records, and e-mail correspondence without the requirement that investigators convince a judge that there is some reason to suspect criminal activity, said Joshua Dratel, a co-chair of NACDL's Amicus Curiae Committee who assisted on the brief. "There might as well not be a Fourth Amendment for people who have international dealings."

Which brings us back today and Judge Robertson's resignation. To me it signals that Bush and his Administration have been deceptive with the FISA Court and using it to cleanse illegally interecepted communications. The new revelations about Bush's executive Order confirmed this and Judge Robertson's conscience told him he just couldn't go along with it any longer.