I was not aware until recently how the judges on the Foreign Intelligence Surveillance Court were chosen for that job, but as Ezra Klein points out they are appointed entirely by the Chief Justice, with no input from either the executive or legislative branches.
To use its surveillance powers — tapping phones or reading e-mails — the federal government must ask permission of the court set up by the Foreign Intelligence Surveillance Act. A FISA judge can deny the request or force the government to limit the scope of its investigation. It’s the only plausible check in the system. Whether it actually checks government surveillance power or acts as a rubber stamp is up to whichever FISA judge presides that day.
The 11 FISA judges, chosen from throughout the federal bench for seven-year terms, are all appointed by the chief justice. In fact, every FISA judge currently serving was appointed by Chief Justice John Roberts, who will continue making such appointments until he retires or dies. FISA judges don’t need confirmation — by Congress or anyone else.
No other part of U.S. law works this way. The chief justice can’t choose the judges who rule on health law, or preside over labor cases, or decide software patents. But when it comes to surveillance, the composition of the bench is entirely in his hands and so, as a result, is the extent to which the National Security Agency and the Federal Bureau of Investigation can spy on citizens.
“It really is up to these FISA judges to decide what the law means and what the NSA and FBI gets to do,” said Julian Sanchez, a privacy scholar at the Cato Institute. “So Roberts is single handedly choosing the people who get to decide how much surveillance we’re subject to.”
And here’s the problem:
To the degree Roberts’s views can be divined, he leans toward giving the government the authority it says it needs. “He’s been very state oriented,” Clancy said. “He’s done very little writing in the area, but to the extent he has, almost without exception, he’s come down in favor of the police.”
Roberts’s nominations to the FISA court are almost exclusively Republican. One of his first appointees, for instance, was Federal District Judge Roger Vinson of Florida, who not only struck down the Affordable Care Act’s individual mandate, but struck down the rest of the law, too. (The Supreme Court disagreed.) Vinson’s term expired in May, but the partisan tilt on the court continues: Only one of the 11 members is a Democrat…
A Reuters investigation found that from 2001 to 2012, FISA judges approved 20,909 surveillance and property search warrants while rejecting only 10. Almost 1,000 of the approved requests required modification, and 26 were withdrawn by the government before a ruling. That’s a startling win rate for the government.
The FISA court is better than nothing, but it’s not better than many possible alternatives. But Congress certainly isn’t going to change it because that would mean they might have to engage in meaningful oversight and take some responsibility, something they run from like it was Godzilla.