Last month, President Obama defended the government surveillance programs exposed by Edward Snowden, telling Charlie Rose, “It is transparent. That’s why we set up the FISA court.” He added that in addition to Congress, “you’ve got a federal court with independent federal judges overseeing the entire program.” That’s true, but he failed to mention that the judges approve nearly every government request, their decisions are classified, and they’re all appointed by the Supreme Court’s chief justice. For the first time, the New York Times has published a list of every judge to serve on the Foreign Intelligence Surveillance Court since it was created in 1978. Their analysis reveals that compared to his predecessors, Chief Justice John Roberts’s picks are far more likely to be Republicans, and to have worked in the executive branch.
Chief Justice Roberts was already known to select mainly conservatives to serve the seven-year terms on the court, but the the Times shows that his selections are even less diverse than those of the last two chief justices, who were also Republicans. Of Warren Burger and William Rehnquist’s picks, 66 percent were appointed by Republican presidents and 39 percent had worked for the executive branch. As for Roberts, 86 percent of his selections have been Republican appointees, and 50 percent worked in the executive branch. The eleven judges currently serving on the court were all assigned by Roberts. Ten are Republicans and six have worked for the federal government.
What effect that has on the court is debatable. Democratic Senator Richard Blumenthal tells the Times that judges who used to be executive branch lawyers are more likely to defer to federal government. Steven Bradbury, who headed the Justice Department’s Office of Legal Counsel under the Bush administration, says judges with executive branch experience already understand some of the complex issues involved, and are thus more likely to ask tough questions. As for the judges’ political leanings, the Times notes that studies of non-FISA cases have shown that judges appointed by Republicans since Reagan are more likely to side with the government over people who claim their civil liberties have been violated.
Part of the FISA court’s extremely high approval rate for surveillance and property search warrants might be the nature of the requests. President Obama suggested, “Folks don’t go [to the FISA court] with a query unless they’ve got a pretty good suspicion.” And in a Times op-ed this week, former FISA court judge James G. Carr pointed out that to collect phone and Internet data, the government only has to show “probable cause that the target has a connection to a foreign government or entity or a foreign terrorist group,” while for a regular search warrant they’d have to show probable cause that the target is suspected of a crime.
Regardless, Snowden’s leaks have intensified calls to change how the secret court operates. Both Carr and another former FISA court judge, James Robertson, are pushing for more transparency and say lawyers should be appointed to challenge the government’s requests. Several members of Congress have come up with plans to change how the judges are selected, in an attempt to wrest some control from the chief justice. For instance, Sen. Blumenthal has proposed that each of the chief judges of the twelve major appeals courts should select a FISA court judge. He says that in light of the new data, “people with responsibility for national security ought to be very concerned about the impression and appearance, if not the reality, of bias.”