Retired Judge: FISA Court Little Comfort

Retired U.S. District Judge Nancy Gertner, now a professor at Harvard Law School, is challenging the idea that the Foreign Intelligence Surveillance Court, set up under the FISA law to operate in secret to handle some cases involving national security, is much of a meaningful safeguard for our privacy or our liberty. She got up at a talk the other day and said:

As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced.

Two reasons: One … The Fourth Amendment frameworks have been substantially diluted in the ordinary police case. One can only imagine what the dilution is in a national security setting. Two, the people who make it on the FISA court, who are appointed to the FISA court, are not judges like me. Enough said…

It’s an anointment process. It’s not a selection process. But you know, it’s not boat rockers. So you have a [federal] bench which is way more conservative than before. This is a subset of that. And it’s a subset of that who are operating under privacy, confidentiality, and national security. To suggest that there is meaningful review it seems to me is an illusion.

I did not know that the members of the court were appointed by the Chief Justice, though I’d never really given much thought to who appointed them. Gertner also pointed out that there is little reason why such cases could not be handled by regular civilian courts:

I’m very troubled by that. When you get cases in court, in regular civilian court that have national security issues that have classified information, we developed a process whereby the parties would develop security clearances and it could be presented to the court without it being disclosed to anyone else. It is not entirely clear to me why a civilian court with those protections that is otherwise transparent couldn’t do the job. That’s the way we did it before. Then we moved to this national security court. The notion that we have to have a conversation about major incursions on civil liberties and that we have step back and say we don’t really know, we haven’t seen the standards, we haven’t seen the opinions is extraordinary troubling in a democracy.

There is one single example of a civilian case resulting in the release of classified information to the public (with no damage done as a result, by the way) and the prosecutor in that case was Andrew McCarthy, who now goes around scaring the hell out of everyone about how civilian trials lead to such releases. There’s just one problem — he failed to file the paperwork to protect the document that was released, which he could have done under federal law.

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  • Andrew McCarthy.

    It’s true: anyone can grow up to be a Federal prosecutor.

  • Sadly, McCarthy does have some semblance of an argument, though I doubt he’d ever put it this way: thanks to incompetence on the part of a single attorney, or other court personnel, confidential information could be, and has been, released.

  • Abby Normal

    There are people who trust the FISA Courts? The way I see it they’re just better than the total absence of review that has been the prevailing standard for the past decade. That the President, whether Republican or Democrat, has worked so hard to circumvent the court shows they provided at least some measure restriction. Otherwise why spend the political capital it’s taken to bypass them? I don’t like the idea of secret courts. I just see them as the best achievable alternative to an unchecked Executive. Though this article does make me wonder if I’m underestimating what’s achievable. Is convincing the American public that civilian courts are capable of protecting both civil liberties and national security a realistic goal?

  • slc1

    I found it interesting that Judge Gertner was a former defense attorney before being appointed to the federal bench. Most judges, both federal and local are former prosecutors these days. The defense bar is looked on as somewhat seedy, a bias put on by the lamestream media, particularly with the televising of spectacular trials that that of O. J. Simpson. I recall the opprobrium heaped on Johnny Cochran and his colleagues by the lame stream media, with accusations of all manner of sleazy behavior. Actually, it was Marcia Clark who put perjurers like Mark Fuhrman and Phil Vanatter on the stand, not Cochran. It’s prosecutors who encourage testilying by cops.

  • To be fair, Andrew McCarthy was pretty good in Weekend at Bernie’s.

  • marcus

    @5 MO He was playing the corpse wasn’t he? Great character actor!

  • marcus

    @ me 7 Sorry wrong corpse!