Judge James Robertson, Who Quit FISA Court Over Wiretapping, Dies at 81

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James Robertson, a federal judge who quit an intelligence oversight panel in 2005 to protest warrantless domestic wiretapping by the George W. Bush administration, died on Sept. 7 in Washington. He was 81.

His wife, Berit Robertson, said the cause was heart failure.

A year before leaving the intelligence board, Judge Robertson, who sat on the United States District Court in Washington, had suspended military proceedings against a man held at Guantánamo Bay as a suspected terrorist.

In the early 2000s, Judge Robertson was one of 11 judges on the Foreign Intelligence Surveillance Board, which was created in 1978 in response to reported excesses by law enforcement agencies that were spying on foreign agents in the United States without authorization.

He resigned in 2005 after The New York Times revealed that President Bush had secretly sanctioned the National Security Agency to eavesdrop on Americans without court orders in the wake of the terrorist attacks of Sept. 11, 2001.

Judge Robertson and other critics complained that the panel, known as the FISA court (created by the Foreign Intelligence Surveillance Act), had become a rubber stamp for the administration, and that amendments passed by Congress in 2008 had further granted the court “interpretive powers” that went beyond “the bailiwick of judges.”

In another setback for the Bush administration, Judge Robertson, while sitting on the federal bench in Washington, ruled in 2004 that Salim Ahmed Hamdan, a Yemeni former chauffeur for Osama bin Laden, could not be tried by a military court as an enemy combatant because the government had neglected to prove, as warranted by international treaties, that he was a prisoner of war.

Mr. Hamdan had been seized by American troops during the invasion of Afghanistan and was being held at the detention center at Guantanamo Bay Naval Base in Cuba.

An appeals court overturned Judge Robertson’s decision in 2005. But the next year, in Hamdan v. Rumsfeld, the United States Supreme Court ruled, 5-to-3, that the commission that had been created to try Mr. Hamdan violated both the code of military justice and the Geneva Conventions.

After the law was amended to clarify the military’s jurisdiction, Mr. Hamdan was convicted of giving material support for terrorism. He was transferred to Yemen to 2008 to serve the remaining month of his sentence. But his conviction was voided by an appeals court in 2012 on the grounds that the acts he was accused of in 2006 were not war crimes when he committed them.

James Robertson was born on May 18, 1938, in Cleveland to Frederick and Doris (Byars) Robertson. His mother was a psychiatric social worker, his father an investment banker.

After growing up in Oberlin and Dayton in Ohio, he attended the Woodrow Wilson School of Public and International Affairs at Princeton on an R.O.T.C. scholarship and graduated in 1959. He served in the Navy as a gunnery officer on a destroyer in the early 1960s — his first experience with Guantánamo, when his ship docked there.

He married Berit Persson in 1959. In addition to her, he is survived by three children, Stephen, Catherine and Peter Robertson; six grandchildren; and his sister, Ellen Wallace.

Judge Robertson had briefly considered a career in advertising or journalism but decided on the law after hearing a lecture by the criminal lawyer Edward Bennet Williams, who at the time was successfully defending James R. Hoffa, the Teamsters union leader.

Judge Robertson graduated from George Washington University Law School in 1965 and joined a Washington firm now known as WilmerHale. Among other clients, he defended automakers who were under assault by the consumer advocate Ralph Nader for ignoring safety violations.

A former president of the District of Columbia Bar, he was nominated for the federal bench by President Bill Clinton and confirmed by the Senate in 1994.

In 1969, Judge Robertson took a leave from his law firm to head the Jackson, Miss., office of the Lawyers Committee for Civil Rights Under Law, a nonprofit group formed at the request of President John F. Kennedy. In one case, as Judge Robertson recalled in an interview with the Columbia Center for Oral History in 2013, a black minister “appeared at the door of the jail with his Sunday school choir to ask about a black man that he had heard was being beaten in the jail.”

The minister and his entire choir were arrested and, despite being sprayed with Mace, began singing “We Shall Overcome” through the open upper floor windows to a crowd that had gathered below. The minister was convicted after trial of delinquency of a minor, a 12-year-old girl. His crime, Judge Robertson said, quoting the Mississippi authorities at the time, was “‘causing her to be in a bad place’ — namely, the jail.” The verdict was reversed on appeal.

Judge Robertson said that when he was sent to Mississippi he hadn’t practiced law long very long and was not an expert in civil rights statutes. As he put it, he was “the delegate from the establishment.”

“I came from a recognized firm, I wasn’t a radical,” he said. “I wasn’t a longhaired hippie. I understood authority and how it worked.”


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