The Associated Press reported without challenge Sen. Orrin Hatch's (R-UT) statement that at least two of the judges on the Foreign Intelligence Surveillance Court had been briefed on the National Security Agency's (NSA) domestic spying activities and that "[n]one raised any objections." The AP article did not note that these two judges reportedly expressed serious concerns about the constitutionality of the NSA's warrantless domestic surveillance program.
In a May 17 article, Associated Press staff writer Katherine Shrader reported without challenge Sen. Orrin Hatch's (R-UT) May 16 statement that at least two of the judges on the Foreign Intelligence Surveillance Court had been briefed on the National Security Agency's (NSA) domestic spying activities and that "[n]one raised any objections." Shrader did not note that two judges informed of the NSA's warrantless domestic surveillance program prior to its public disclosure reportedly expressed serious concerns about the constitutionality of the operation and its effect on the warrant process.
On December 16, 2005, The New York Times revealed that the Bush administration had authorized the NSA to eavesdrop on the international communications of U.S. residents without a warrant, in apparent violation of the Foreign Intelligence Surveillance Act (FISA), which requires court approval in order to conduct domestic electronic surveillance for foreign intelligence purposes. A May 12 USA Today article shed further light on the NSA's domestic surveillance, reporting that the agency has been collecting and analyzing records of phone calls made by millions of Americans since 2001. The Washington Post then reported that the two programs were related.
In her May 17 article, Shrader reported that Hatch had stated that "at least two of the chief judges" on the court that oversees the FISA warrant process had been briefed on the administration's "broad" surveillance activities but that "[n]one [of the judges] raised any objections, as far as I know.":
Two judges on the secretive court that approves warrants for intelligence surveillance were told of the broad monitoring programs that have raised recent controversy, a Republican senator said Tuesday.
Orrin Hatch, R-Utah, said that at least two of the chief judges on the Foreign Intelligence Surveillance Court had been informed since 2001 of White House-approved National Security Agency monitoring operations.
"None raised any objections, as far as I know," said Hatch, a member of a special Intelligence Committee panel appointed to oversee the NSA's work.
Hatch made the comment in answering a question in an interview about recent reports of the government compiling lists of Americans' phone calls. He later suggested he was also speaking broadly of the administration's terror-related monitoring.
When asked if the judges somehow approved the operations, Hatch said, "That is not their position, but they were informed."
In fact, contrary to Hatch's claim that none of the judges who had been briefed on the program had "raised any objections" to the administration's surveillance activities, earlier reports indicate that two judges who had been briefed on the program strongly questioned the administration's decision to bypass FISA procedures and conduct surveillance of U.S. residents without warrants.
The Washington Post reported in a February 9 article that between Bush's authorization of the warrantless domestic surveillance program shortly after the September 11, 2001, terrorist attacks and its public disclosure more than four years later, only the court's presiding judge had been briefed on the NSA operation. There have been two presiding judges during this period: U.S. District Judge Colleen Kollar-Kotelly and her predecessor, U.S. District Judge Royce C. Lamberth. They are presumably the two judges to whom Hatch referred on May 16.
While Kollar-Kotelly and Lamberth "believed they did not have the authority to rule on the president's power to order the eavesdropping," according to the Post, they did question the program's constitutionality:
The two judges' discomfort with the NSA spying program was previously known. But this new account reveals the depth of their doubts about its legality and their behind-the-scenes efforts to protect the court from what they considered potentially tainted evidence.
Both judges expressed concern to senior officials that the president's program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions.
Further, the Post reported that both judges took actions to "protect the integrity of the FISA process" by attempting to "shield the court from tainted information":
According to government officials familiar with the program, the presiding FISA judges insisted that information obtained through NSA surveillance not form the basis for obtaining a warrant and that, instead, independently gathered information provide the justification for FISA monitoring in such cases. They also insisted that these cases be presented only to the presiding judge.
So early in 2002, the wary court and government lawyers developed a compromise. Any case in which the government listened to someone's calls without a warrant, and later developed information to seek a FISA warrant for that same suspect, was to be carefully "tagged" as having involved some NSA information. Generally, there were fewer than 10 cases each year, the sources said.
James A. Baker, the Justice Department's liaison to the FISA court, later alerted the judges that the NSA had failed to tag all of its surveillance targets. This disclosure led to a "temporary suspension of the warrantless eavesdripping program:
In 2004, Baker warned Kollar-Kotelly he had a problem with the tagging system. He had concluded that the NSA was not providing him with a complete and updated list of the people it had monitored, so Justice could not definitively know -- and could not alert the court -- if it was seeking FISA warrants for people already spied on, government officials said.
Kollar-Kotelly complained to then-Attorney General John D. Ashcroft, and her concerns led to a temporary suspension of the program. The judge required that high-level Justice officials certify the information was complete -- or face possible perjury charges.
Media Matters for America has documented numerous instances of the AP advancing administration supporters' false claims and misleading defenses regarding the NSA domestic spying.