James Robertson; judge ruled against federal wiretapping without warrant

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, D.C. He was 81.

The cause was a heart ailment, said a son, Stephen Robertson.

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, D.C., firm now known as WilmerHale. Among his early assignments was representing the Automobile Manufacturers 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, Mississippi, 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.”

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.’”