James Robertson, a federal judge who drew national attention for his ruling on the rights of a foreign detainee in U.S. custody at Guantanamo Bay in Cuba and his resignation from a judicial surveillance panel to protest warrantless federal wiretapping, died Sept. 7 at a hospital in Washington. He was 81.
Judge Robertson was a U.S. District Court Judge in Washington from 1994 to 2010. His resignation from the Foreign Intelligence Surveillance Court in 2005, three years into his appointment, followed media revelations that the Bush administration had bypassed the court by failing to obtain warrants in its gathering of information from U.S. electronic communications carriers in its war on terrorism.
The administration’s actions came at a time of heightened anxiety over national security that followed the 9/11 terrorist attacks in New York and Washington. To the Bush administration, the warrantless wiretapping practice was “the terrorist surveillance program.”
Before serving on the federal bench, he was a corporate lawyer from 1965 to 1994 with the Washington firm now known as WilmerHale. Among his early assignments was representing the Automobile Manufacturer’s Association in the wake of car-safety violations uncovered by consumer activist Ralph Nader.
In 1969, he took a leave from the firm to run the Jackson, Miss., office of the Lawyers’ Committee for Civil Rights Under Law, a Washington-based nonprofit group that brings private lawyers in campaigns for civil and human rights.
Judge Robertson described himself in an oral history for Columbia University as a “delegate from the establishment. I came from a recognized firm. I wasn’t a radical. I wasn’t a long-haired hippie. I understood authority and how it worked.”
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Some of his most important cases, he said, were low-profile and set no universal legal precedent but related directly to workaday life and injustice in the rural South.
“In one case,” he said, “a black minister was charged with contributing to the delinquency of a minor because he 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 jailer then arrested him and his whole choir,” Judge Robertson continued, “put them in the jailhouse upstairs, maced them through the bars of the jail — they opened the windows and started singing ‘We Shall Overcome,’ crowds gathered in the courthouse, the highway patrol were called in to keep order, and the denouement of all this was a charge of contributing to the delinquency of a minor, a 12-year-old girl — to wit, by ‘causing her to be in a bad place,’ namely, the jail.
“That case, believe it or not, went to trial,” he added. “And, of course, the minister was convicted, but we got it reversed on appeal.”
Another case, he said, involved the time-honored stratagem of getting the right jury and a twist on a line from the English poet Alexander Pope, “Wretches hang that jurymen may dine.”
The matter involved a black defendant charged with assault to kill a sheriff’s deputy and a jury — of two blacks and 10 whites — that began considering the case around Thanksgiving.
“ ‘If we have to be here until Easter, we’re going to be here until Easter, We’re voting to acquit,’ ” Judge Robertson quoted the black jurors as having said. “They out-waited the white folks. . . . The white folks all said, ‘Oh, to hell with it. We’ll vote to acquit.’ ”
Such cases, Judge Robertson said, could become “a catalyst for community organization. All civil rights movements are local. . . . They were town by town, county by county.”
After three years in Mississippi, Judge Robertson returned to his firm in Washington and became partner in 1973. He would remember those years in the South as defining elements in his legal career. As president of the D.C. Bar Association in 1991 and 1992, he helped establish a process for the hiring of young minority lawyers by the white-shoe law firms.
President Bill Clinton appointed him to the federal bench in 1994. A decade into his tenure, he ruled in a major case regarding a Yemeni prisoner, Salim Ahmed Hamdan, who was being held at the U.S. military detention center at Guantanamo Bay Naval Base. Hamdan, a chauffeur for al-Qaeda terrorist leader Osama bin Laden, had been seized during the American invasion of Afghanistan and imprisoned by the U.S. military.
A military tribunal designated Hamdan an enemy combatant, even as Hamdan challenged his detention with a writ of habeas petition before Judge Robertson’s court. The judge ruled in Hamdan’s favor, saying the government had neglected to determine if Hamdan was a prisoner of war, as required by the Geneva Conventions, before trying him by the commission.
The U.S. Supreme Court upheld Judge Robertson’s ruling in 2006 in a decision largely focused on whether the president or Congress had explicit authorization or inherent power to establish a military commission with the right to try those charged with war crimes in the post-9/11 war on terror.
Although Hamdan was later tried and convicted under new rules, he was released to Yemen in 2008.
In 2002, Chief Justice William H. Rehnquist named Judge Robertson to the Foreign Intelligence Surveillance Court, a secretive intelligence court of 11 judges that authorizes surveillance on U.S. soil if a target is shown to be an agent of a foreign power.
The court was created in 1978 in the wake of revelations of abuses involving domestic spying by U.S. intelligence and law enforcement agencies, as a way to balance privacy and civil liberties against national security imperatives.
The 2001 al-Qaeda-sponsored attacks on the United States, which killed nearly 3,000 people, sparked a renewed urgency to fight international terrorism by any means possible, including the hunt for communications records that might help federal agents connect dots and prevent another catastrophe.
After his resignation, Judge Robertson spoke critically of how the court’s mission had strayed from its straightforward duty to approve or turn down a warrant application, particularly after Congress passed amendments in 2008 to the Foreign Intelligence Surveillance Act, which had set up the court. The new legislation allowed the government to conduct domestic surveillance without warrants in some cases and granted the court interpretive powers.
“That change, in my view, turned the FISA court into something like an administrative agency that makes rules for others to follow,” Judge Robertson said at an oversight hearing in 2013. “That’s not the bailiwick of judges. Judges don’t make policy.”
At the hearing, some critics of the surveillance court said the judges were largely Republican appointees who acted as a rubber stamp for the national security community. Hearings consisted of government lawyers and the judges, and Judge Robertson was among those suggesting that the process had become too one-sided.
“Anyone who has been a judge will tell you a judge needs to hear both sides of a case before deciding,” Judge Robertson said. “This process needs an adversary.”
In 2015, Congress passed the USA Freedom Act, which empowered the court to appoint “amicus curiae,” or individuals with expertise in privacy and civil liberties, telecommunications or any area that may assist the judge in cases involving a “novel or significant interpretation” of the law.
James Robertson was born in Cleveland on May 18, 1938, and grew up in Oberlin, Ohio, and Dayton, Ohio. His father was a banker, and his mother a social worker. He graduated from Princeton University in 1959, served in the Navy and received a law degree from George Washington University in 1965.
In 1959 he married Berit Persson. In addition to his wife, of Washington, survivors include three children, Stephen Robertson of Los Altos, Calif., Catherine Robertson of Washington and Peter Robertson of Cleveland; a twin sister; and six grandchildren.
Away from the courtroom, Judge Robertson was an amateur photographer, a singer and guitar player, a sailor, and a do-it-yourself handyman who made bookcases and other household items.
Thirty-three young lawyers clerked for him during his years as a judge and they remained lifelong friends. He presided at the weddings of eight of his former law clerks, including one nuptial where both bride and groom had been his clerks.
“I think of this as an arranged marriage. I arranged it,” he said at the time.
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