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Chicago judge Zagel sits on secret FISA surveillance court

James Zagel

James Zagel

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Updated: July 12, 2013 6:25AM

WASHINGTON — U.S. District Court Judge James Zagel regularly presides over high-profile cases in Chicago — notably Rod Blagojevich’s corruption and the Family Secrets mob trials — but much lesser known is his secret role on the most secret court in the nation.

Zagel is one of 11 judges on the Foreign Intelligence Surveillance Court — the court in the news because the April order signed by one of its judges, Roger Vinson, allowed the National Security Agency to collect tens of millions of Verizon phone records of its U.S. customers.

The court is nicknamed the “FISA Court” after the 1978 law creating it, the Foreign Intelligence Surveillance Act. A FISA Court judge approved a government request for the collection of Internet and social media records in the program code-named “PRISM.”

Combined, the Verizon and PRISM leaks have touched off a national debate about privacy and anti-terrorism surveillance in the post-9/11 era as well as whether self-admitted NSA leaker Edward Snowden — now in hiding — should be treated as a hero or a criminal, because it is only a matter of time before he faces a federal indictment.

From time to time Zagel leaves his high-ceiling courtroom in the Dirksen Federal Building in Chicago, where the public is free to observe his trials, to travel to Washington for FISA Court business at the District Court building here, a short stroll from the Capitol.

According to FISA court spokesman Sheldon Snook, the 11 FISA judges rotate one-week stints in Washington, so Zagel leaves his bench in Chicago for FISA work as part of a regular routine.

A former Justice Department attorney I talked to — who handled FISA-related matters — told me FISA court personnel work in a secret room the intelligence community calls a “SKIFF” — a Sensitive Compartmented Information Facility.

A SKIFF is a windowless secure room — it may be filled with white noise to avoid eavesdropping —where a FISA Court judge such as Zagel reviews highly classified applications from Justice Department lawyers to allow surveillance.

Zagel, 72, entered this secret world on May 18, 2008, tapped for the spot by John Roberts, the chief justice of the United States who appoints all the FISA Court judges. Zagel’s term runs to May 18, 2015.

When picked by Roberts, Zagel was already a long-serving judge for the Northern District of Illinois, nominated for the federal spot by Former President Ronald Reagan on Feb. 2, 1987. In a speed not seen for current judicial appointments, Zagel was confirmed by the Senate on April 21, 1987.

Before Zagel put on his robes, he had a career as a prosecutor and in law enforcement; he was the director of the Illinois State Police between 1980 and 1987.

While Wikipedia notes Zagel’s FISA Court appointment — it is public record, as well as the names of all the other judges — Zagel’s biography on the Federal Judiciary official website makes no mention of it.

Then again, neither is Zagel’s 2002 bank-heist thriller, “Money to Burn” on his official court bio. The FISA job seems more germane.

Through a secretary, Zagel declined on Monday to be interviewed on his FISA work.

If you wonder where a FISA court order can lead — besides to your phone and online records, we can follow a path to an arrest by federal authorities last year of a Hillside resident, Adel Daoud, a U.S. citizen who allegedly planned to blow up a Chicago bar.

Daoud is awaiting trial for what federal authorities called an attempted act of “violent jihad.”

How do I know about the FISA link if everything is so secret?

Senate Intelligence Committee Chairman Sen. Dianne Feinstein (D-Calif.), arguing on the Senate floor last Dec. 27 to reauthorize FISA through the end of 2017, cited as a FISA success the disclosure of “a plot to bomb a downtown Chicago bar.”

A Senate Intelligence Committee document — detailing “Terrorist Arrests and Plots Stopped in the United States 2009-2012” — states that Daoud was arrested “after he was discovered on the Internet seeking information on how to conduct terrorist attacks.”

Thomas Durkin, Daoud’s attorney, is asking for a court order to determine if evidence to be used against Daoud came to the attention of authorities because of massive FISA-related surveillance. Wrote Durkin in his brief, “a mass surveillance order is effectively a blank check . . . [that] may be used to justify the surveillance of communications implicating thousands or even millions of United States citizens and residents.”

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