The G.O.P.’s Surveillance Judiciary
Is it possible to simply disband the partisan FISA court?
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Is it possible to simply disband the partisan FISA court?
In Friday’s New York Times, Charlie Savage takes a closer look at the judges hand-picked by John Roberts for the Foreign Intelligence Surveillance Act (FISA) court.
Ten 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.
Not surprisingly, the Times review shows that Roberts has fashioned a court in his own image: movement conservative, Republican, largely consisting of persons who previously worked in the government. In sum, Roberts has picked a court that can be relied upon to quickly approve any government request for surveillance, through whatever instruments and according to whatever rules the government wishes.
The two chief justices who preceded Roberts, William H. Rehnquist and Warren E. Burger, were also conservative Republicans, and like Roberts they also ensured that a majority of the FISA court’s judges were conservative Republicans. However, neither of his predecessors was nearly so obsessive about it as Roberts — two-thirds of their selections were Republicans, while for Roberts, all but one have been Republican.
Equally consequential, to my mind, are the legal backgrounds of the judges selected. As Connecticut senator Richard Blumenthal, a career prosecutor, has explained, “Judges who used to be executive-branch lawyers were more likely to share a ‘get the bad guys’ mindset and defer to the Justice Department if executive-branch officials told them that new surveillance powers were justified.”
The division forming over National Security Agency surveillance is hardly a conventional partisan split. Those who hold or are in the thrall of executive power — the Obama Administration, the Democratic and the G.O.P. congressional leadership — want to safeguard its secrets from the American public. Their interest was laid bare in curious fashion near the end of a recent House hearing on the NSA scandal. Virginia Republican Bob Goodlatte asked the government’s most senior intelligence lawyer, Robert S. Litt, whether he really believed the government could keep such a vast surveillance program a secret forever. “Well,” Litt replied, “we tried.”
Standing in opposition to the NSA’s surveillance overreach is an ad-hoc coalition of civil-liberties Democrats and libertarian Republicans. An amendment they introduced in the House to this end failed last week by a vote of 217 to 205, after last-minute arm-twisting from G.O.P. congressional leaders and senior Obama officials secured the tiny margin of victory. The winning votes may have come from representatives who are opposed to the breadth of the NSA programs but believe the agency should have time to wind them down. Leaders in both camps expect the NSA’s surveillance frolic-and-detour to be curtailed when its current authorization period expires, a point on which senior Republican congressman Jim Sensenbrenner (Ill.), an author of the Patriot Act provisions used to justify the surveillance, has lately been emphatic.
The special judicial body put in place by FISA to check government surveillance activities has been transformed by John Roberts into a cheerleader for such programs. This judicial adulteration leaves NSA critics in Congress with little alternative but to push for laws establishing further limits on NSA activities — though even if they manage to pass such a law, they must be wary of the demonstrated ability of the Justice Department, the NSA, and the FISA court to find secret “understandings” of statutes that justify unforeseen forms of overreach.
The Roberts Court, as we might as well call the FISA body, has stumbled in upholding the ongoing expansion of government surveillance, and is justifiably drawing fire from Congress and the public over its demonstrated failures of judicial detachment and objectivity. But is it possible to simply disband the court? In the end, there is no getting around the need for a judicial check in the surveillance process. It would make far more sense to let the terms of the current judges lapse at the end of this year and require that new members be appointed, with those now serving precluded from another term. And the process by which new members are appointed must ensure that the new court is representative of the federal judiciary as a whole. That might be achieved by any of a number of proposals pending in Congress, but it surely won’t occur if John Roberts is allowed to continue to appoint the FISA court’s members.
More from Scott Horton:
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
i. stand with israel
I listen to a lot of conservative talk radio. Confident masculine voices telling me the enemy is everywhere and victory is near — I often find it affirming: there’s a reason I don’t think that way. Last spring, many right-wing commentators made much of a Bloomberg poll that asked Americans, “Are you more sympathetic to Netanyahu or Obama?” Republicans picked the Israeli prime minister over their own president, 67 to 16 percent. There was a lot of affected shock that things had come to this. Rush Limbaugh said of Netanyahu that he wished “we had this kind of forceful moral, ethical clarity leading our own country”; Mark Levin described him as “the leader of the free world.” For a few days there I yelled quite a bit in my car.
The one conservative radio show I do find myself enjoying is hosted by Dennis Prager. At the Thanksgiving dinner of American radio personalities (Limbaugh is your jittery brother-in-law, Michael Savage is your racist uncle, Hugh Hewitt is Hugh Hewitt) Dennis Prager is the turkey-carving patriarch trying to keep the conversation moderately high-minded. While Prager obviously doesn’t like liberals — “The gaps between the left and right on almost every issue that matters are in fact unbridgeable,” he has said — he often invites them onto his show for debate, which is rare among right-wing hosts. Yet his gently exasperated take on the Obama–Netanyahu matchup was among the least charitable: “Those who do not confront evil resent those who do.”
Pairs of moose-dung earrings sold each year at Grizzly’s Gifts in Anchorage, Alaska:
An Alaskan brown bear was reported to have scratched its face with barnacled rocks, making it the first bear seen using tools since 1972, when a Svalbardian polar bear is alleged to have clubbed a seal in the head with a block of ice.
A former prison in Philadelphia that has served as a horror-movie set was being prepared as a detention center for protesters arrested at the upcoming Democratic National Convention, and presumptive Republican presidential nominee Donald Trump fired his campaign manager.
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“Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'”