Fallout continues from the New York Times hit piece on the NSA intercept program as now the defense lawyers for terrorist suspects want to know if their clients were caught up in the government’s digital dragnet:

Defense lawyers in some of the country’s biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.

The lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were singled out.

The expected legal challenges, in cases from Florida, Ohio, Oregon and Virginia, add another dimension to the growing controversy over the agency’s domestic surveillance program and could jeopardize some of the Bush administration’s most important courtroom victories in terror cases, legal analysts say.

To say that this was a predictable outgrowth of the New York Times leaking the top secret NSA intercept program is an understatement. In fact, since the Times sat on the story for a year and thus had ample time to examine all the potential consequences of publishing the information, one can only come to the conclusion that the paper’s editors wanted to throw a great big monkey wrench into the Administration’s efforts to not only monitor terrorists but prosecute them as well.

As David Ignatius points out in this Washington Post Op-Ed, the spin given to the NSA program was designed to put it in the worst possible light while omitting pertinent facts that would have given much needed perspective to the story:

We know only the barest outlines of what the NSA has been doing. The most reliable accounts have appeared in the New York Times, the newspaper that broke the story. Although the headline has been “warrantless wiretapping,” the Times accounts suggest the program actually was something closer to a data-mining system that collected and analyzed vast amounts of digitized data in an effort to find patterns that might identify potential terrorists.

As I pointed out here, the use of the inflammatory term “wiretapping” is a misnomer. The act of wiretapping is illegal without a warrant and involves actually listening in to the conversations of the person being targeted. The intercept program instead probably scooped up massive amounts of data using computer algorithms to identify key words and voices and then may have cross referenced any “hits” with information in private data bases like credit card companies and airlines. How this amounts to “wiretapping” in any but the most partisan mind is a mystery.

Ignatius also outlines the problems for the Fourth Amendment purist critique of the program:

The legal problems, as Arkin suggests, involve the dots—what digital information can the government legitimately collect and save for later analysis, and under what legal safeguards? As it trolls the ocean of data, how can the government satisfy legal requirements for warrants that specify at the outset what may only be clear at the end of the search—namely, specific links to terrorist groups? These and other questions will vex lawyers and politicians in the coming debate, but they aren’t a reason for jettisoning these techniques.

The Times story answers these questions by showing how terrorist defense lawyers will exploit the leak of the classified program:

At the same time, defense lawyers in terrorism cases around the country say they are preparing letters and legal briefs to challenge the N.S.A. program on behalf of their clients, many of them American citizens, and to find out more about how it might have been used. They acknowledge legal hurdles, including the fact that many defendants waived some rights to appeal as part of their plea deals.

Government officials, in defending the value of the security agency’s surveillance program, have said in interviews that it played a critical part in at least two cases that led to the convictions of Qaeda associates, Iyman Faris of Ohio, who admitted taking part in a failed plot to bring down the Brooklyn Bridge, and Mohammed Junaid Babar of Queens, who was implicated in a failed plot to bomb British targets.

David B. Smith, a lawyer for Mr. Faris, said he planned to file a motion in part to determine whether information about the surveillance program should have been turned over. Lawyers said they were also considering a civil case against the president, saying that Mr. Faris was the target of an illegal wiretap ordered by Mr. Bush. A lawyer for Mr. Babar declined to comment.

By seeking this kind of information, the lawyers for suspected terrorists will see to it that as many details as possible about the program come to light. Many of them have already proven that they will flood the courts with motions, some of them frivolous such as the motion filed on behalf of a Guantanamo inmate alleging that the prison library didn’t carry a certain book. If allowed to do so, the lawyers could tie these cases up for years.

This brings us back to the questions surrounding the intercepts themselves and the reasons for not seeking warrants in the first place. As I pointed out yesterday, the Federal Intelligence Surveillance Court (FISC) was giving the Administration a hard time regarding many of the requests for warrants. In fact, after going some 22 years with never turning down or even modifying a warrant request, starting in 2002, the FISC court flatly turned down 4 or 5 warrants outright and modified 179 others. The reason may have to do with the mechanics of how the government goes about getting a warrant from FISC.

An amendment to the law authorizing the FISC contained in the Patriot Act stipulated that at least 3 judges on the panel would have to live within 20 miles of Washington. This may reflect problems in the past with expediting the process of getting a warrant. And the FISA act mandates that the government present its case to one judge only – they cannot take “two bites of the apple” by simply walking it down the hall and presenting it to another judge.

Why are these two facts relevant. The judge most likely to be “on call” and therefore the one most likely to preside over the bulk of the warrant hearings was none other than the judge who recently resigned from the FISC court, James Robertson.

And herein may lie the reason why the Bush Administration decided that FISA needed to be bypassed in order to safeguard the country.

Robertson, a holdover on the FISC from the Clinton era, has a resume that reveals not only strong liberal (and Democratic Party) credentials but also a purists approach to the Bill of Rights.

In fact, Judge Robertson was in the forefront of the civil rights movement in the 1970’s, certainly a noble calling for which he should be commended. He served as Chief Counsel of the Lawyers Committee for Civil Rights Under Law. He was also President of the Southern Africa Legal Services and Legal Education Project in the 1980’s. For political connections, he was employed by Wilmer, Cutler, and Pickering which is one of the top Democratic party law firms in Washington.

An impeccable pedigree for someone serving on one of the most liberal District Courts in the Country – the US District Court – District of Columbia. But is this someone with the judicial temperament to serve on a court that by its very nature skirts a very fine line between civil liberties and the needs of government to protect us from attack?

I am sure Judge Robertson is an honorable man. But could a myopic view of terrorism and the terrorist threat have hindered the Administration in its efforts to prevent terrorist attacks? An attitude that terrorists are criminals may have in fact permeated most of the FISC court in which case, the judges may have been looking for justification for warrants based on probable cause regarding criminality rather than preventing terrorist attacks.

This may be where the real divide exists between those who see the searches as a gross violation of the Constitution and those who believe it was necessary to safeguard America. It may very well be that the FISC court was not able to make the intellectual and psychic transition from a court charged with oversight of government actions regarding criminals to one whose mission was to allow the government significant leeway in its efforts to prevent another attack. And if this were the case, the Administration’s actions in bypassing the FISC court make sense.

Whether it was truly necessary remains to be seen. But having a civil libertarian like Robertson sitting on a court where speed was of the essence and lines were blurred between terrorists and criminals could not have been conducive to getting the most out of the NSA intercept program.