No Comment — July 29, 2013, 11:36 am

The G.O.P.’s Surveillance Judiciary

Is it possible to simply disband the partisan FISA court?

Illustration by Terry Stevenson, Harper's Magazine, December 1974

Illustration by Terry Stevenson, Harper’s Magazine, December 1974

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.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

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.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 169 years of
Harper’s for only $23.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

October 2019

FEATURED ON HARPERS.ORG

Article
Constitution in Crisis·

= Subscribers only.
Sign in here.
Subscribe here.

America’s Constitution was once celebrated as a radical and successful blueprint for democratic governance, a model for fledgling republics across the world. But decades of political gridlock, electoral corruption, and dysfunction in our system of government have forced scholars, activists, and citizens to question the document’s ability to address the thorniest issues of modern ­political life.

Does the path out of our current era of stalemate, minority rule, and executive abuse require amending the Constitution? Do we need a new constitutional convention to rewrite the document and update it for the twenty-­first century? Should we abolish it entirely?

This spring, Harper’s Magazine invited five lawmakers and scholars to New York University’s law school to consider the constitutional crisis of the twenty-­first century. The event was moderated by Rosa Brooks, a law professor at Georgetown and the author of How Everything Became War and the Military Became Everything: Tales from the Pentagon.

Article
Good Bad Bad Good·

= Subscribers only.
Sign in here.
Subscribe here.

About fifteen years ago, my roommate and I developed a classification system for TV and movies. Each title was slotted into one of four categories: Good-Good; Bad-Good; Good-Bad; Bad-Bad. The first qualifier was qualitative, while the second represented a high-low binary, the title’s aspiration toward capital-A Art or lack thereof.

Some taxonomies were inarguable. The O.C., a Fox series about California rich kids and their beautiful swimming pools, was delightfully Good-Bad. Paul Haggis’s heavy-handed morality play, Crash, which won the Oscar for Best Picture, was gallingly Bad-Good. The films of Francois Truffaut, Good-Good; the CBS sitcom Two and a Half Men, Bad-Bad.

Article
Power of Attorney·

= Subscribers only.
Sign in here.
Subscribe here.

In a Walmart parking lot in Portsmouth, Virginia, in 2015, a white police officer named Stephen Rankin shot and killed an unarmed, eighteen-­year-­old black man named William Chapman. “This is my second one,” he told a bystander seconds after firing the fatal shots, seemingly in reference to an incident four years earlier, when he had shot and killed another unarmed man, an immigrant from Kazakhstan. Rankin, a Navy veteran, had been arresting Chapman for shoplifting when, he claimed, Chapman charged him in a manner so threatening that he feared for his life, leaving him no option but to shoot to kill—­the standard and almost invariably successful defense for officers when called to account for shooting civilians. Rankin had faced no charges for his earlier killing, but this time, something unexpected happened: Rankin was indicted on a charge of first-­degree murder by Portsmouth’s newly elected chief prosecutor, thirty-­one-year-­old Stephanie Morales. Furthermore, she announced that she would try the case herself, the first time she had ever prosecuted a homicide. “No one could remember us having an actual prosecution for the killing of an unarmed person by the police,” Morales told me. “I got a lot of feedback, a lot of people saying, ‘You shouldn’t try this case. If you don’t win, it may affect your reelection. Let someone else do it.’ ”

Article
Carlitos in Charge·

= Subscribers only.
Sign in here.
Subscribe here.

I was in Midtown, sitting by a dry fountain, making a list of all the men I’d slept with since my last checkup—doctor’s orders. Afterward, I would head downtown and wait for Quimby at the bar, where there were only alcoholics and the graveyard shift this early. I’d just left the United Nations after a Friday morning session—likely my last. The agenda had included resolutions about a worldwide ban on plastic bags, condemnation of a Slobodan Miloševic statue, sanctions on Israel, and a truth and reconciliation commission in El Salvador. Except for the proclamation opposing the war criminal’s marble replica, everything was thwarted by the United States and a small contingent of its allies. None of this should have surprised me. Some version of these outcomes had been repeating weekly since World War II.

Article
Life after Life·

= Subscribers only.
Sign in here.
Subscribe here.

For time ylost, this know ye,
By no way may recovered be.
—Chaucer

I spent thirty-eight years in prison and have been a free man for just under two. After killing a man named Thomas Allen Fellowes in a drunken, drugged-up fistfight in 1980, when I was nineteen years old, I was sentenced to life without the possibility of parole. Former California governor Jerry Brown commuted my sentence and I was released in 2017, five days before Christmas. The law in California, like in most states, grants the governor the right to alter sentences. After many years of advocating for the reformation of the prison system into one that encourages rehabilitation, I had my life restored to me.

Cost of renting a giant panda from the Chinese government, per day:

$1,500

A recent earthquake in Chile was found to have shifted the city of Concepción ten feet to the west, shortened Earth’s days by 1.26 microseconds, and shifted the planet’s axis by nearly three inches.

A group of researchers studying the Loch Ness Monster did not rule out the possibility of its existence, but speculated that it is possibly a giant eel.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Happiness Is a Worn Gun

By

“Nowadays, most states let just about anybody who wants a concealed-handgun permit have one; in seventeen states, you don’t even have to be a resident. Nobody knows exactly how many Americans carry guns, because not all states release their numbers, and even if they did, not all permit holders carry all the time. But it’s safe to assume that as many as 6 million Americans are walking around with firearms under their clothes.”

Subscribe Today