Adonis Diaries

About time to Reshaping Secret Surveillance Court? Chief Justice John G. Roberts Jr.

Posted on: August 11, 2013

About time to Reshaping Secret Surveillance Court? Roberts’s Picks

The recent leaks about government spying programs have focused attention on the Foreign Intelligence Surveillance Court and its role in deciding how intrusive the  government can be in the name of national security. Less mentioned has been the person who has been quietly reshaping the secret court: Chief Justice John G. Roberts Jr.
 published this July 25, 2013 on NYT “Roberts’s Picks Reshaping Secret Surveillance Court”
Ten of the court’s 11 judges — all assigned by Chief Justice Roberts — were appointed to the bench by Republican presidents.

Jason Reed/Reuters

Changing Makeup of Surveillance Courts
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.

Ten of the court’s 11 judges — all assigned by Chief Justice Roberts — were appointed to the bench by Republican presidents; 6 once worked for the federal government. Since the chief justice began making assignments in 2005, 86% 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% 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.

Mr. Blumenthal, for example, has proposed that each of the chief judges of the 12 major appeals courts select a district judge for the surveillance court.

The chief justice would still pick the review panel that hears rare appeals of the court’s decisions, but 6 other Supreme Court justices would have to sign off. Another bill, introduced by Representative Adam B. Schiff of California, would give the president the power to nominate judges for the court, subject to Senate approval.

Chief Justice Roberts, through a Supreme Court spokeswoman, declined to comment.

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.”

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.

Robertson said 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.”

The court began expanding its role when George W. Bush was president and its members were still assigned by Chief Justice Rehnquist, who died in 2005. Midway through the Bush administration, the executive branch sought and obtained the court’s legal blessing to continue secret surveillance programs that had originally circumvented the FISA process.

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.

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adonis49

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August 2013
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