Who’s In Charge Of The FISA Court? John Roberts, And Apparently Just John Roberts

Chief Justice Roberts is the only person who gets to say who sits on the FISA Court.

Chief Justice John Roberts

When it comes to the Foreign Intelligence Surveillance Court, which isn’t so much a Court unto itself as it is a rotating group of Federal Judges appointed to hear warrant requests and other matter designated as appropriate for secret proceedings under the Foreign Intelligence Surveillance Act, there’s nobody more powerful than Chief Justice John Roberts:

The 11 FISA judges, chosen from throughout the federal bench for seven-year terms, are all appointed by the chief justice. In fact, every FISA judge currently serving was appointed by Roberts, who will continue making such appointments until he retires or dies. FISA judges don’t need confirmation — by Congress or anyone else.

No other part of U.S. law works this way. The chief justice can’t choose the judges who rule on health law, or preside over labor cases, or decide software patents. But when it comes to surveillance, the composition of the bench is entirely in his hands, and, as a result, so is the extent to which the National Security Agency and the Federal Bureau of Investigation can spy on citizens.

“It really is up to these FISA judges to decide what the law means and what the NSA and FBI gets to do,” said Julian Sanchez, a privacy scholar at the Cato Institute. “So Roberts is single-handedly choosing the people who get to decide how much surveillance we’re subject to.”

One some level, I suppose this makes sense. Like James Joyner, I accept the general idea of the need for a Court that conducts secret, or to use the precise legal terminology sealed, proceedings when dealing with matters as potentially sensitive as requests from law enforcement to conduct surveillance on people who may be agents of foreign governments or involved with foreign terrorist elements. Because all warrant requests in a normal Federal District Court are matters of public record, it would simply be impractical and unwise for those matters to be easily accessible on the public record in a manner that could potentially tip off targets of an investigation. Indeed, even in these courts there are procedures that allow law enforcement to keep their warrant requests, Criminal Complaints, and even Grand Jury Indictments under seal until its felt advisable to make them public. That works in the odd case here and there, but it’s easy to see how things could fall through the cracks if FISA cases were all processed through a non-FISA Court.

It’s also easy to see how it is that the Chief Justice ended up being the person responsible for staffing the FISA Court itself.. In addition to heading the Supreme Court, Roberts, whose official title is Chief Justice of the United States, sits at the top of the entire Federal Judiciary. The Court’s administrative arm reports directly to  him, for example, and he directly involved in the preparation and presentation of the Judiciary Department’s budget request to Congress each year, among other administrative responsibilities. When the FISA law was adopted in 1978, Congress no doubt saw the idea of the Chief Justice making these appointments, from among a group of Federal Judges who had already been confirmed to lifetime appointments by the Senate, as the best and most efficient manner in which to staff the Court. Ezra Klein, though, sees a danger of group think setting in:

Roberts’s nominations to the FISA court are almost exclusively Republican. One of his first appointees, for instance, was Federal District Judge Roger Vinson of Florida, who not only struck down the Affordable Care Act’s individual mandate but the rest of the law, too. (The Supreme Court disagreed.) Vinson’s term expired in May, but the partisan tilt on the court continues: Only one of the 11 members is a Democrat.

Critics contend the FISA court is too compromised to conduct genuine oversight. It meets in secret, and the presiding judge hears only the government’s argument before issuing a decision that can’t be appealed or even reviewed by the public. “Like any other group that meets in secret behind closed doors with only one constituency appearing before them, they’re subject to capture and bias,” said Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program.

A Reuters investigation found that from 2001 to 2012, FISA judges approved 20,909 surveillance and property search warrants while rejecting only 10. Almost 1,000 of the approved requests required modification, and 26 were withdrawn by the government before a ruling. That’s a startling win rate for the government.

(…)

The FISA court is composed of federal judges. All are appointed by the same man. All but one hail from the same political party. And unlike judges in normal courts, FISA judges don’t hear opposing testimony or feel pressure from colleagues or the public to moderate their rulings. Under these circumstances, group polarization is almost a certainty. “There’s the real possibility that these judges become more extreme over time, even when they had only a mild bias to begin with,” Cato’s Sanchez said.

Just as the likelihood of polarization in the FISA court is more pronounced than in normal courts, the stakes are also higher. If trial judges are unduly biased, their rulings can be overturned on appeal. But FISA judges decide the momentous questions of whom the government may spy on and how. Their power is awesome, and their word is final. As the great legal scholar Kanye West said, no one man should have all that power.

To be fair, there are explanations other than partisanship that likely account for the largely Republican makeup of FISA Judges under Roberts tenure today. Judging from this list of recent Judges on the Court, it seems quite apparent that there is a bias toward appointing older and more experienced Judges to this Court. For example, Judge Vinson, who Klein specifically mentions in the quote above, was appointed to the Court in 2006, his 23rd year on the Federal Bench. Former members of the FISA Court Judge Thomas Hogan and Judge Claude Hilton were also appointed well into the second decade of their time on the bench. There are understandable reasons why this would be the case. Given the sensitive and complicated nature of the cases that FISA Judges it’s not at all surprising that Roberts’ selections for this assignment would be drawn from more senior members of the Judiciary and, right now, that is primarily made up of judges appointed between 1981 and 1989 by Presidents Reagan and George H.W Bush. So, it’s likely less a conspiracy or blatant partisanship than it is a pure accident of history. The seven year length of service on the FISA Court also contributes to this to some extent. Give it 5-10 years and we’ll start seeing Judges appointed by President Clinton appointed to FISA assignments.

Leaving that aside, though, Klein does make some good points. The secret and one-sided nature of the Court’s proceedings make it likely that FISA Judges are likely to be biased toward the government, but I’d be interested to see whether there’s really that much of a difference between FISA proceedings and those in a normal Federal District Court. When law enforcement applies for a warrant to a U.S. District Court Judge, they don’t give notice to the party they are seeking to execute it against, or any third parties that may be impacted by it. The difference, of course, is that the applications are generally public and can be subjected to further review. Nonetheless, it’s largely the case that Judges grant warrant requests far more than they grant them (though admittedly not with the “success” rate of the FISA Court) so I’m not sure it’s correct to single out the FISA Court, or the fact that the Judges on it are all appointed by one man.

FILED UNDER: Intelligence, Law and the Courts, National Security, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. James Joyner says:

    But it’s not like this is a power grab: this has been the law of the land since 1978. And it was a result of the Church hearings–a major reform effort by Congress.

  2. Agreed completely.

    I think Klein tends to paint this is far more sinister tones than are necessary. In the end, if you’re going to create a Court like this made up of sitting Federal Judges I’m not sure who else you’d put in charge of it.

  3. stonetools says:

    Yet one more reason why (1) Presidential elections are crucial (2) Federal Judges’ tenure should be time limited.
    Its seems to me that the Chief Judge role should be rotated-maybe every two to four years.No way it should be a permanent appointment, given the power of the role.
    Another possibility-give the power of appointing FISA judges to the Senate Intelligence Committee, or some other body accountable to the public.

  4. Woody says:

    Gee, after witnessing how Republicans demonstrate their partisan-free fair-mindedness for the letter of the law for the past several decades, the fact that Justice Roberts overwhelmingly appoints fellow Republicans must be merely coincidental.

    Of course, FISA writs will of course never be used in a partisan fashion (would you bet your house on that proposition?).

    Sorry, but this stinks to high heaven.

  5. Jeremy says:

    Couple of things:

    1) If the FISA court is so secret, how does Ezra Klein know that only one of its members is a Democrat?

    2) We shouldn’t have a FISA court. I understand the concerns about making these practices public. But criminal investigations can be handled without resorting to a “secret court.” (Yes, I’ve read Joyner’s blog post. I disagree. But I do agree with his point that we need to get Congress straightened out. How? I don’t know. But it needs to happen.)

    3) Putting the power of appointing all the members of one court into the hands of one man without any oversight is irresponsible. This is not how a republic works. Congress needs to exercise more oversight in these matters and closer management, even though I dislike Congress.

    4) I’m not really convinced by all the secrecy arguments in general. I realize there are concerns about “tipping off” terrorists and criminals to an ongoing investigation, but they have to know that they may be under investigation at any point in time. And when we do do all this secrey, we end up with PRISM, mail covers, the NDAA, and other Gestapo type crap. So spare me the secrecy arguments, I’ll take a lean towards transparency for $1000, Alex.

  6. michael reynolds says:

    @Jeremy:

    We shouldn’t have a FISA court. I understand the concerns about making these practices public. But criminal investigations can be handled without resorting to a “secret court.”

    So if Bin Laden had made some calls from Pakistan to Detroit we’d have wanted to tell the whole world we were listening in. Yeah, that’s brilliant.

  7. michael reynolds says:

    @Jeremy:

    PRISM, mail covers, the NDAA, and other Gestapo type crap

    Sweet Jesus. Yes, that’s what the Gestapo did. They mostly went after metadata by peaceful means. Wait. . . what? It’s reality knocking at the door? Let’s go see what reality wants:

    LYON, France–In 1944, when she was 13, Simone Lagrange testified yesterday, Klaus Barbie gave her a smile as thin as a knife blade, then hit her in the face as he cuddled a cat at the Gestapo headquarters in Lyon.

    Lise Lesevre, 86, said Barbie tortured her for nine days in 1944, beating her, nearly drowning her in a bathtub and finally breaking one of her vertebrae with a spiked ball.

    Ennat Leger, now 92, said Barbie “had the eyes of a monster. He was savage. My God, he was savage! It was unimaginable. He broke my teeth, he pulled my hair back. He put a bottle in my mouth and pushed it until the lips split from the pressure.”

    The three women were among seven people who took the witness stand yesterday to testify against Barbie, the former head of the Gestapo in [Paris] during the Nazi occupation of France in World War II.

    That was one member of the Gestapo.

    Has PRISM tried to drown you? Shattered your spine? Tortured you for nine days?

  8. David in KC says:

    Warrants by their nature are one sided. The protection is that if the judge grants one when they shouldn’t, the evidence can’t be used in court. Same applies here, if the FISA judge wrongly issues a warrant, the Feds can’t use it in a criminal trial. Regards of the tin foil brigade, they aren’t getting the info to know everything, they get it because they think that the info is evidence of a crime (or for those programs that require 1 warrant to get the big data and a second warrant to look at it, the second one is based on probable cause). The appeal is durring the criminal trial.

    I do think that they should change up the selection process, maybe the chief makes a list with a mix of party affiliation with info on sustained decisions, time on the bench, preappointment work history and the chairs and senior members of both intelligence committees, or better yet, judiciary committees, pick one to be on the FISA court.

  9. JohnMcC says:

    @James Joyner: I’ll consider this a response to your reply to my contribution on your own O.P. on this topic, Dr Joyner, and thank you for your attention. There are several comments here regarding possible methods of making appointments to the FISA Court more (as I said in the previous thread) ‘democratic’. I would offer a couple more: Since this Court is about Foreign Intelligence — why not have some sort of input from the Chair and Ranking Members of the Senate Foreign Relations Committee and/or the Intelligence Committee. Why not ask the State Dept or the Joint Chiefs? It takes very little thought to imagine something more ‘democratic’ than “let the Chief Justice take care of that”.

  10. Jeremy says:

    @michael reynolds:

    So the Gestapo of Nazi Germany did way more bad stuff and used physical torture than today’s NSA. That does not excuse PRISM or any of these programs.

    And before you say that the NSA doesn’t do this stuff, it may not directly, but it does lead to physical beatings. Look at the kid who was has been in jail since February, still hasn’t faced a trial, and is being beaten up, all for making a joke on Facebook.

    Then there’s the Third Amendment case which was discussed here on OTB, where police took over a guy’s house. And home invasions happen all the time. That’s pretty Gestapo-y. How many people have been injured, killed, or otherwise harmed by these actions? I honestly don’t know, but it’s huge. Read the National Police Misconduct Reporting Project by Cato.

    And then let’s look at the mail covers program, which was so conveniently used by Sheriff Joe Arpaio to spy on his political opponent on the county board. Hmm, using law enforcement for political intimidation…

    And then we can get into the extradition cases. Have US citizens been captured and tortured under these conditions? I don’t know, but what we do know is that they did this to a whole bunch of innocent people, and that is intolerable in and of itself.

    Did the Gestapo do things that the NSA [or any other arm of the United States national security apparatus] hasn’t (yet) done? Yes. Has it done things the NSA [or any other arm of the United States national security apparatus] has done? Yes.

    You can argue that the system is decentralized, but that’s why I made my caveats above. This institution is being used by all levels of government to oppress the citizenry. I see nothing wrong with pointing that out. Do you have a problem with that?

  11. Jeremy says:

    @michael reynolds:

    OMG, if we had no FISA court the whole world will know what we’re doing!

    Jeez, melodramatic, much?

  12. Jeremy says:

    @michael reynolds: Oh, and Mike, if you want more American gestapo…

    As the Texas Hold ’Em craze picked up momentum in the mid-2000s, fans of the game started hosting tournaments at private clubs, bars, and residences. Police in many parts of the country responded with SWAT raids. In 2011, for example, police in Baltimore County, Maryland, sent a tactical unit to raid a $65 buy-in poker game at the Lynch Point Social Club. From 2006 to 2008, SWAT teams in South Carolina staged a number of raids to break up poker games in the suburbs of Charleston. Some were well organized and high-stakes, but others were friendly games with a $20 buy-in. “The typical police raid of these games . . . is to literally burst into a home in SWAT gear with guns drawn and treat poker players like a bunch of high-level drug dealers,” an attorney representing poker players told a local newspaper. “Using the taxpayers’ resources for such useless Gestapo-like tactics is more of a crime than is playing of the game.”

  13. Ben Wolf says:

    @michael reynolds: There isn’t a terrorist with two brain cells to rub together who doesn’t know we’re doing everything in our power to intercept their communications. It wouldn’t matter if we announce it, which is exactly why the argument our eavesdropping needs to be secret does not hold water.

    The only people who appear to have been unaware of NSA spying are innocent private citizens.

  14. Jeremy says:

    @Ben Wolf: Thank you. That’s also a really good point, though I failed to make it.

  15. michael reynolds says:

    @Jeremy:

    So the Gestapo of Nazi Germany did way more bad stuff and used physical torture than today’s NSA. That does not excuse PRISM or any of these programs.

    In other words, as I pointed out, your comparison was ridiculous.

    Then there’s the Third Amendment case which was discussed here on OTB, where police took over a guy’s house.

    Right, because the NSA = The Hawthorne, CA police Department.

    And Arpaio is also the NSA?

    Okay, this is a waste of my time.

  16. twolaneflash says:

    At this point, having an inkling of the depth, breadth, and duration of corruption in and around Government, I’m willing to vote no more. What difference does it make? Call me when the Red Coats march; I’ll be with the Overmountain men.

  17. JohnMcC says:

    @Ben Wolf: Mr Wolf, I think you are wrong that that the average American is less intelligent than a “terrorist with two brain cells to rub together”. Unless they get their information from Fox News. Then, yes, I would agree.

  18. Ben Wolf says:

    @JohnMcC: I’m not saying Americans are dumb, I’m saying anyone intending to attack a nation-state knows electronic communications are inherently risky. Innocent private citizens throughout the world, not just Americans, are only now discovering their communications are being monitored because they never thought they would be surveillance targets.

  19. @michael reynolds: God damnit Michael, you should be smarter than this. The whole POINT of eliminating spy programs such as PRISM and the NSA’s cellular metadata collection program is to prevent such tactics from becoming the norm in the first place.

    When did the liberals start spouting the “they could bomb us again!?” nonsense that the neo-cons were using all those years? What happened?

  20. Jeremy says:

    @michael reynolds:

    Okay, Michael, you want to troll? Go ahead and troll.

    Meanwhile, I’m not going to have my head shoved two feet up my arse.

  21. wr says:

    @Christopher Bowen: “When did the liberals start spouting the “they could bomb us again!?” nonsense that the neo-cons were using all those years? What happened? ”

    Please note that Michael Reynolds, despite my admiration for his career and my appreciation of his posting here, particularly when he sticks his boot up Jenos’ ass, is not the same thing as “liberals.”

    He may be one liberal, although he’s a liberal who cheerleads for Realpolitik like he’s Henry Kissinger’s top apprentice. And he was all in favor W’s war until it turned bad.

    He’s very smart, very opinionated, can write like hell… but he ain’t “liberals.”

    And I bet he’d agree with me on that.

  22. HarvardLaw92 says:

    @michael reynolds:

    Okay, this is a waste of my time.

    Trying to discuss the real world with Libertarians usually is …

  23. Tyrell says:

    @Jeremy: Certainly Gestapo head Heinrich Himmler would be envious of the widespread system that has been set up and the resources that they have to use: technology and the use of government agencies.

  24. Scott says:

    One thing I don’t understand is this: While the specifics of a case before the FISA court can be secret; there is talk of a growing body of law and precedent that is also secret. Specifics can be secret but I don’t understand why the law and its application is also secret. If very specific exceptions to various constitutional amendments are being made and rationalized, then they need to be brought to light of day.

  25. David in KC says:

    @Scott: because cases apply law to facts. The case law would be useless without the facts.

  26. Tony W says:

    This whole secret surveillance scenario smacks of the same twisted logic that makes an “open container” a crime.

    They can’t get the dude for drunk driving because he’s at zero BAC – or at least below the legal limit, so they create a crime called “open container” anticipating that he might commit the actual crime at some point in the future if he or his passengers have a container open in the car.

    Similarly the NSA spies on everyone, just in case they might commit an international crime (where they have jurisdiction) – because “security”. Memo to politicians – I am secure in my okayness and do not require perfect security, particularly from my government.

    I call BS – get a warrant, THEN gather info. If the warrant needs to come from a secret court like FISA, that’s fine, but there needs to be accountable and civilian oversight, and the whole thing needs to be responsive to FOIA requests.

  27. Tony W says:

    @Scott:

    I don’t understand why the law and its application is also secret.

    Simple – because it is not defensible.

  28. WireNews+Co says:

    It’s a shame that Barry Soetoro didn’t honor his commitment not to vote for FISA as a senator. He’s got a habit of saying one thing and doing another.