New judge named to court that hasn’t met in four years

It’s the court that hears appeals when the government
loses in the FISA Court

What’s the easiest job in government?

Chief Justice John Roberts

We’re not sure.  But a good candidate for that honor would be judge on the Foreign Intelligence Surveillance Court of Review.

This court should not be confused with the Foreign Intelligence Surveillance Court (FISC), which issues secret orders in response to government requests to conduct surveillance.

As the name implies the FISC Court of Review is the court that hears appeals from the Foreign Intelligence Surveillance Court (commonly known as the “FISA Court”) itself.

But here’s the catch, as in Catch-22:

As we noted in a previous post to this blog, and in our report on the FISA Court, that court hears only one side of the story – the government’s.  So only the government can appeal if it loses.  But, of course, since the FISA Court hears only the government’s side of the story, the government almost never loses.  In fact, from 2002 to 2012 it lost 0.07 percent of the time.  Before 2002 it never lost at all.

That’s why the Court of Review hasn’t even met since 2009 – which was the last time the government actually had a request rejected by the FISA Court.

All of this explains why the announcement that Chief Justice John Roberts has named a new judge to the Court of Review is not exactly earth-shattering news.

It is, however, still another illustration of Roberts’ political savvy.  As we note in our report, one of the key problems with the FISA Court is that the Chief Justice of the United States gets to name all the judges – with no advice and consent required from the Senate, or anyone else.  And, to a far greater degree than his predecessors, Roberts has stacked the FISA Court with judges initially appointed by Republican presidents, many of whom have a history of working as prosecutors or for the executive branch.

With that record under renewed scrutiny, Roberts went in a different direction for the Court of Review – the court that actually does almost nothing: He named José A. Cabranes, who was first named to the federal bench by President Carter and elevated to the United States Court of Appeals for the Second Circuit by President Clinton. (Though, as The New York Times notes, Cabranes "is considered among the more conservative-leaning Democratic appointees on crime and security issues." 

This one move illustrates both of the key problems with the FISA process highlighted in our report: The lack of a true adversarial process, and the fact that the Chief Justice names all the judges with no review.

Both these issues deserve the urgent attention of Congress when it returns from recess.  Senators Richard Blumenthal, D-Conn., Tom Udall, D-N.M., and Ron Wyden D-Ore.,

have introduced bills to address both problems, and their proposals warrant their colleagues’ prompt consideration.  In the meantime, we wish Judge Cabranes the best of luck in his new second job – in finding something to do.

AFJ report examines troubling questions about FISA Court

Court "is unlike anything else in our democratic system of checks and balances…”

          Giving the Chief Justice of the United States sole power to appoint all of the judges on an enormously powerful court that issues secret decisions “is unlike anything else in our democratic system of checks and balances…” according to a new report from Alliance for Justice.

The FISA Court was created in response
 to abuses by the Nixon Administration

         The report, Justice in the Surveillance State, takes a close look at some of the troubling issues surrounding the Foreign Intelligence Surveillance Court (FISC).  The court also is known as the FISA Court, after the law that created it. It is the subject of renewed scrutiny in the wake of revelations by Edward Snowden, a contractor formerly working for the National Security Agency (NSA). Snowden leaked a FISC order that permitted the NSA to collect millions, if not billions of data points on American citizens.

  This order – like all orders from this court – was secret.  And though the court was created originally to approve surveillance over individuals, its role has vastly expanded – indeed, it appears to be creating an entire body of Fourth Amendment law in secret.

          While pointing out the broad range of troubling issues raised by the FISC, the report focuses on issues with the composition and operation of the court that make it unique among federal courts.

          As the report notes:

A secret court comprised of judges picked by one individual is problematic enough when that court rules on individual surveillance applications.  But for such a court to be developing an entire body of law, impacting millions of Americans outside of its statutory jurisdiction is even more disconcerting.

AFJ’s extensively-documented report provides a history of the court, from its creation in response to abuses by the Nixon Administration to the present, a survey of current issues and concerns and a review of proposed solutions.

         The report zeros in on two key problems:

        ● In an unprecedented concentration of power, the judges of the FISC are appointed solely by the Chief Justice of the United States – with no advice or consent from Congress.  Judges are chosen from among those currently serving on the federal bench.  Chief Justice John Roberts has used this power to name almost exclusively judges initially appointed by Republican presidents, many of whom have a history of working as prosecutors or for the executive branch.

        ● There is no true adversarial process.  The judges hear only the government’s side of the story.  This may help explain why, between 2002 and 2012, the court approved more than 99.93 percent of government requests.  (Before 2002, it approved 100 percent).

  The report concludes:

These are but a few of the issues that deserve a full, open, and honest debate surrounding our growing surveillance state. Issues of transparency and oversight, international relations, and the role of private contractors in our military-industrial complex are all of vital importance. However, the focus of this report – reforming the way in which judges are appointed to the FISC and ensuring that procedural safeguards are in place – are matters that deserve attention and exploration by Congress, the President and his administration, and the [Privacy and Civil Liberties Oversight Board]. Alliance for Justice intends to remain engaged on these issues and intends to play a role in meaningful discussions going forward with all interested parties.

Read the full report