How Three Decades Of Conservative Chief Justices Turned The FISA Court Into A Rubber Stamp

Legal Issues

from the FISC:-both-the-wheels-AND-the-grease dept

The FISA court has been deemed a “rubber stamp” and with good reason. Not a single request was rejected over the last two years and over the last twelve years, the court has only rejected 10 out of 20,909 requests.

Reuters has put together a long and detailed piece showing why the court is so compliant. Much of it has to do with who was selected and who selected them.

Selected by the Chief Justice of the United States, FISA judges serve for staggered seven-year terms. Although the court carries 11 judges at a time, 14 have served this year because of routine turnover.

Six of the 14 were originally appointed to the trial courts by George W. Bush; five by Ronald Reagan; two by Clinton and one by George H. W. Bush.

“Since FISA was enacted in 1978, we’ve had three chief justices, and they have all been conservative Republicans, so I think one can worry that there is insufficient diversity,” said Stephen Vladeck, a law professor at American University’s Washington College of Law.

The court is currently comprised of 14 judges, 12 of which are Republican. Half are former prosecutors. Reggie Walton helped lead the War on Drugs under William Bennett. James Zagel spent seven years as the director of the Illinois State Police, following a dozen years in the state attorney’s office (including three years as Chief Prosecutor). John Bates spent some time as an assistant state’s attorney but more notably has spent a large part of his judicial career dismissing cases brought against the US government and its officials, including a challenge to an Obama-approved targeted killing and Privacy Act claim brought against the DOJ. Mary McLaughlin (the sole Democrat) spent four years as a prosecutor. Raymond Dearie has years of experience as an Assistant United States Attorney for the Eastern District of NY, along with other work done in conjunction with law enforcement. Thomas Hogan was involved in a ruling that restricted public access to Nixon’s White House records (and ordered Playboy to continue printing copies in Braille) as well as jailing a NY Times writer for refusing to disclose a source and authorizing an FBI raid on a congressman’s office — a first in the government’s history.

It’s unsurprising that George W. Bush would find the makeup of the court to his liking when pushing his “War on Terror” policies — conservatives with backgrounds in crime and (especially) punishment. (There’s no bigger crime than terrorism.) Obama should have been the wild card — someone who could have attempted to tilt things back in a more moderate direction or at least questioned the court’s overwhelmingly partisan composition. Instead, he extended and expanded many of Bush’s policies and realized there was no one better to carry out these directives than adherents to the party line.

Almost all of the current FISA judges declined to comment or be interviewed. Only one (Reggie Walton) responded, issuing this rather indignant statement:

“The perception that the court is a rubber stamp is absolutely false. There is a rigorous review process of applications submitted by the executive branch, spearheaded initially by five judicial branch lawyers who are national security experts, and then by the judges, to ensure that the court’s authorizations comport with what the applicable statutes authorize.”

Walton may not like the “rubber stamp” designation but the only information the public is allowed to look at indicates a vast majority of requests are granted, no matter how wide a net the requesting agents wish to cast.

Walton’s claim that the court’s authorizations “comport with what the applicable statutes authorize” is similarly hollow. What’s been at least as surprising as the scope and reach of the NSA and FBI’s granted requests is the fact that this massive-scale domestic surveillance still somehow falls under the protection of existing laws, or at least the secret interpretation of these laws.

Other information gathered by Reuters suggests some sort of oversight is being applied, but without further details, it’s very hard to determine its effect on granted requests.

The records also show that FISA judges ordered “substantial modifications” to 497 surveillance and property warrants and 428 of the business record warrants

The statistics are especially intriguing for business record warrants for 2011 and 2012. Of 417 warrants authorized, the court “substantially modified” 376.

There are a few educated guesses as to what “substantially modified” means, and it very likely doesn’t mean “protecting the privacy of US citizens.”

Syracuse University College of Law professor William C. Banks, who follows the FISA court closely, said he suspects that warrants are “modified” when judges request more information about a warrant or decide to split a warrant with multiple suspects, phone numbers and locations into several, more specific ones.

“We can’t tell the extent of modification, but clearly it suggests that the judges are taking a real look at these things and are at least modifying them in some respect,” said Penn Law professor Theodore Ruger. “But I don’t think it answers the bigger, more important question of whether this court is acting as a balanced check on the government’s authority.”

To date, the court has been little more than a complicit tool of two consecutive administrations. Exacerbating this problem is the fact that the Chief Justice of the United States is free to pick FISA judges that align with their viewpoints on crime, terrorism and security. What may have originally served as a functioning part of our system of checks and balances has now become an administrative lapdog and a willing cog in the War on Terror machinery.

William C. Banks pointed this out to current and former FISA judges in his keynote speech given at an American Bar Association dinner celebrating the 35th anniversary of the FISA court.

“FISA envisioned case-specific surveillance, not a generic surveillance operation, and its approval architecture was accordingly geared to specific, narrowly targeted applications,” Banks told the FISA judges, according to a transcript. The 2008 changes to the law, he said, have “strained its utility as an independent arbiter of lawful FISA surveillance.”

His speech received “polite, if tepid, applause.”

Judge Walton may bristle at the “rubber stamp” label and everyone from the administration all the way on down to the requesting agent may insist that nothing is done with oversight and strict adherence to applicable laws, but the track record speaks for itself. 12 years. 20,909 requests. 10 rejections. 36 withdrawn by the court.

Either the court is stocked with judges who can rubber stamp their approval and still somehow delude themselves into believing they’re giving everything their full attention and consideration, or they’ve simply bought into the “terrorist” rhetoric and see no other option but complicity to keep this country “safe.” Either way, it’s a travesty.

Filed Under: fisa, fisa court, fisc, law enforcement, prosecutors, supreme court, surveillance