So you think you have a right to know something, anything, about the workings of the Foreign Intelligence Surveillance Court? Maybe we need to, um, discuss this at greater length in, you know, secret."[The members of the Foreign Intelligence Surveillance Court] all seem to have some type of a pretty conservative bent, I don't think that is what the Congress envisioned when giving the chief justice that authority. Maybe they didn't think about the ramifications of giving that much power to one person."-- TN Rep. Steve Cohen, to the NYT's Charlie Savage,in "Roberts's Picks Reshaping Secret Surveillance Court""If the surveillance court is to be considered part of the American justice system, it needs to start looking more like an actual court."-- from a NYT editorial today,"More Independence for the FISA Court"by KenChalk it up as yet another horror we wouldn't be talking about, or maybe even know about, if not for the dastardly traitor Edward Snowden's dastardly treasonous breeches of national-security-imposed secrecy.First, let me say that I'm extremely uneasy talking about the FISA court, the Foreign Intelligence Surveillance Court, since it seems to me overwhelmingly likely that it's illegal to do so, at least without permission of the FISA court, which would probably be impossible to get because if you know enough to ask questions of the FISC, you're probably already in violation of FISA. For national-security reasons, of course.Since we like to pretend that we're a nation of laws, the FISC lets us pretend that all the surveillance done under FISA and the assorted other laws that have followed it purporting to define limits for such activities is A-OK because, after all, so many of those activities require warrants -- from the FISC. It seems unlikely that such warrants have been all that difficult to obtain since the court was created in 1978. But now we learn, thanks to the New York Times's Charlie Savage report a few days ago, that Chief Justice "Smirkin' John" Roberts "has been quietly reshaping the secret court" by virtue of the chief justice's sole authority to appoint its 11 judges (who serve seven-year terms).It appears that the chief has gone into territory unexplored even by his predecessor, William Rehnquist, whom you would have thought as rabid a far-right-wing ideologue as you could imagine in the ranks of government.
In making assignments to the court, Chief Justice Roberts, more than his predecessors, has chosen judges with conservative and executive branch backgrounds that critics say make the court more likely to defer to government arguments that domestic spying programs are necessary.Chief Smirkin' JohnTen of the court's 11 judges -- all assigned by Chief Justice Roberts -- were appointed to the bench by Republican presidents; six once worked for the federal government. Since the chief justice began making assignments in 2005, 86 percent of his choices have been Republican appointees, and 50 percent have been former executive branch officials.Though the two previous chief justices, Warren E. Burger and William H. Rehnquist, were conservatives like Chief Justice Roberts, their assignments to the surveillance court were more ideologically diverse, according to an analysis by The New York Times of a list of every judge who has served on the court since it was established in 1978.According to the analysis, 66 percent of their selections were Republican appointees, and 39 percent once worked for the executive branch."Viewing this data, people with responsibility for national security ought to be very concerned about the impression and appearance, if not the reality, of bias -- for favoring the executive branch in its applications for warrants and other action," said Senator Richard Blumenthal, a Connecticut Democrat and one of several lawmakers who have sought to change the way the court's judges are selected.
And by, er, happy coincidence -- that is, if you favor a perpetual security state with essentially no check on the government's secret surveillance powers, "The court's complexion has changed at a time when its role has been expanding beyond what Congress envisioned when it established the court as part of the Foreign Intelligence Surveillance Act."
The idea then was that judges would review applications for wiretaps to make sure there was sufficient evidence that the F.B.I.'s target was a foreign terrorist or a spy.But, increasingly in recent years, the court has produced lengthy rulings interpreting the meaning of surveillance laws and constitutional rights based on procedures devised not for complex legal analysis but for up-or-down approvals of secret wiretap applications. The rulings are classified and based on theories submitted by the Justice Department without the participation of any lawyers offering contrary arguments or appealing a ruling if the government wins.The court "is becoming ever more important in American life as more and more surveillance comes under its review in this era of big data," said Timothy Edgar, a civil liberties adviser for intelligence issues in both the Bush and Obama administrations. "If the court is seen as skewed or biased, politically or ideologically, it will lose credibility."
How touching that someone is concerned with the FISC's "credibility"! You have to wonder whether any of that concern is shared by the people responsible for the composition of the court -- oh wait, I mean the person responsible.An unexpected source of information about the workings of FISC comes from a former FISC judge.
At a public meeting this month, Judge James Robertson, an appointee of President Bill Clinton who was assigned to the surveillance court in 2002 by Chief Justice Rehnquist and resigned from it in December 2005, offered an insider's critique of how rapidly and recently the court's role has changed. He said, for example, that during his time it was not engaged in developing a body of secret precedents interpreting what the law means."In my experience, there weren't any opinions," he said. "You approved a warrant application or you didn't -- period."
Not surprisingly, the transformation of FISC into a secret national-security policy-making agency happened in the G.W. Bush administration. "Midway through the Bush administration," Charlie Savage reports, "the executive branch sought and obtained the court's legal blessing to continue secret surveillance programs that had originally circumvented the FISA process."And, says Savage, "The court's power has also recently expanded in another way."
In 2008, Congress passed the FISA Amendments Act to allow the National Security Agency to keep conducting a form of the Bush administration's program of surveillance without warrants on domestic soil so long as only foreigners abroad were targeted. It gave the court the power to create rules for the program, like how the government may use Americans' communications after they are picked up.
"That change," Savagee reports Judge Robertson saying, "in my view, turned the FISA court into something like an administrative agency that makes rules for others to follow. That's not the bailiwick of judges. Judges don't make policy."You'll note that there are two categories of appointees who seem to fit Chief Justice Roberts's profile for a FISA judge. There are, of course far-right-wing judges, who are obviously his kind of folks, and then there are former executive-branch employees who are deemed suitable by virtue of their familiarity with the intricate issues involved in applications to FISC.
Steven G. Bradbury, who led the Justice Department's Office of Legal Counsel in the second term of the Bush administration, argued that it made sense to put judges who were executive branch veterans on the court because they were already familiar with the issues. And he challenged the claim that they would be more deferential."When it comes to highly technical national security issues, I really think there is value in a judge being a former prosecutor or a former government lawyer who understands how the executive branch works," he said, adding that such judges "will be familiar with the process and able to ask the tough questions and see where the weak points are."
Of course, since we have no access to the actual workings of FISC, we have no way of knowing how often these fantasies of Bradbury's actually become reality -- you know, a wiser decision being made based on all the executive-branch-insider's knowledge, or one of those ex-insiders asking the tough questions.What suggests that it's utter nonsense is the further preponderance of all thos hard-right judges. What wealth of personal qualifications do they bring to national-security legal issues? (Savage points out that among the FISC's current members, the only Democratic-appointee, Judge Mary A. McLaughlin, is a former prosecutor.)Savage quotes an American University law professor, Stephen Vladeck, accepting the premise that all those executive-branch veterans ("including what he called 'law-and-order Democrats' ") are valuable for their experience with national-security matters.
But the downside, he argued, is that they may also be unduly accommodating to government requests. "The further the court's authority has expanded from where it was in 1978, the greater the need has been for independent-minded government skeptics on the court," he said.
Oops!Today's NYT editorial on the subject, "More Independence for the FISA Court," points out:
The FISA court considers government requests for warrants to collect phone and Internet data, among other things, on an enormous scale. The judges hear only the government’s argument. There is no adversary present to represent interests of those whose privacy would be violated — which could well involve millions of Americans. The court’s rulings, some of which include novel interpretations of constitutional law, remain secret.
The editorial goes on to say:
If the surveillance court is to be considered part of the American justice system, it needs to start looking more like an actual court. For starters, there is no good reason the chief justice should have sole authority to appoint the court’s judges. Already, critics of the current system have floated numerous alternative ways for selecting FISA court judges.One idea worth considering, offered by Senator Richard Blumenthal, Democrat of Connecticut, is for each of the chief judges of the federal appeals courts to select one judge for the surveillance court.This approach could minimize the risk of politicizing the process. A further step might be to require the chief judges’ choices to be submitted for approval to a board consisting of members of Congress with experience in intelligence matters and experts with experience in protecting civil liberties.The professional qualifications of the judges appointed by Chief Justice Roberts are not in question. But given the extent to which the FISA court’s rulings have infiltrated our lives, it is appropriate for the public to have a voice in who sits on it.The authority of our judiciary derives from its independence and its accountability. At the very least, the power to select the judges who are making secret law should not rest in the hands of one man.
Because that one man could be, you know, a radical ideologue happy as a clam to consign us all to live in a security state committed to keeping us in a state of terror. I'm not sure I'm prepared to conced that "the professional qualifications of the judges appointed by Chief Justice Roberts are not in question," because nobody knows better than the chief how important it is to hide your deeply held judicial agendas in order to slither your way onto, say, the Supreme Court. My guess is that there's a fair amount of really putrid sludge festering among his FISC appointments.Still, it would be nice to have some representation of contrary views when it comes to rubber-stamping FISA warrants and also writing the surveillance and security policy that the FISA court is apparently writing on an ongoing basis -- in total secret, of course.#For a "Sunday Classics" fix anytime, visit the stand-alone "Sunday Classics with Ken."
