An open letter

Dear Mr. Attorney General:

Twice in recent days we have seen published evidence of unethical conduct warranting disciplinary action on the part of FISA judges. Since they have hidden their conduct under a cloak of anonymity, the normal process of filing complaints with the Clerk of the FISA Court is unavailing. Therefore, I ask that you immediately institute an investigation to find out which judges are involved and seek appropriate measures to remove or discipline the judges involved.

Let's review that evidence briefly:

In his December 16, 2005 article in the New York Times, James Risen says:

According to those officials and others, reservations about aspects of the program have also been expressed by Senator John D. Rockefeller IV, the West Virginia Democrat who is the vice chairman of the Senate Intelligence Committee, and a judge presiding over a secret court that oversees intelligence matters.

This suggests that a judge on the FISA court was one of Risen's sources.
 
If there is any ambiguity, this article in Thursday's Washington Post, [assuming the newspaper and its reporter have not perpetrated a hoax] establishes beyond peradventure of doubt that some judges on the Court did speak anonymously and in violation of the Code of Judicial Conduct and basic precepts of appropriate judicial conduct to that reporter:

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.

As Andrew McCarthy of the National Review reminds us this is shocking conduct:

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. 

He's right. I urge you to act promptly and put the reporters and FISA Judges under oath, to get to the bottom of this apparent flagrant abuse of office.

Clarice Feldman   1 06 06