With Edward Snowden's revelations that the NSA activities were authorized by the FISA Court and the Administration's pointing to the FISA Court as providing judicial oversight for these actions, naturally attention has been brought to this secret court whose proceedings and decisions are entirely unavailable and therefore unverifiable to the public. Apparently the FISA judges are very unhappy about how they have been portrayed in the press as rubber stampers now that information has come out in multiple places that the FISA Court almost never says no to the Administration. Many news outlets and political analysts have taken the FISA Court to task for not appearing to apply any sort of restriction on Executive action.
The FISA Court was suffering enough of an image problem before it was learned via Ezra Klein's recent posting about how FISA Court members are chosen. We all knew they were sitting federal judges, but until Klein's column, I did not know that all of them are appointed by the Chief Justice. There is no Senate confirmation or any other check on the Chief Justice's choices to the FISA Court. He is the lone decider. Even if we assume that the ideology of the judge does not matter, an assumption that would run counter to reams of political science research about the strong influence of ideology saying otherwise, there is still a problem.
Today, Geoffrey B. Stone outlines the challenge with having the Chief Justice appoint the FISA Court members:
Of the 11 judges currently serving on the court, ten were initially appointed to the federal bench by Republican presidents. Only one, Judge Mary McLaughlin, was appointed by a Democratic president- Bill Clinton. The reason for this seems pretty clear, and it is troubling. Under the FISA Act, the Chief Justice appoints the members of the FISA court. Since 1978, when the FISA court was created, every Chief Justice of the United States -- Warren Burger, William Rehnquist and John Roberts - was appointed by a Republican president. At present, approximately 50 percent of federal district court judges were appointed by Republican presidents and 50 percent were appointed by Democratic presidents. But on the FISA court, 91 percent were appointed by Republican presidents and only 9 percent were appointed by Democratic presidents.
So it is a safe guess that the partisan composition of the FISA Court judges in no way mirrors or even approximates the partisan distribution on the federal courts. In fact political science research shows that Democratic and Republican judges have very different views about affirmative action, and abortion. I'm in the process of tracking down studies on the effect of ideology on national security issues.
July 7, 2013 update.
The New York Times today published a story about more of the FISA Court's functions. In one chilling paragraph, Eric Lichtbau wrote:
The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.
Yesterday, Michael McGough published an oped in the LA Times suggesting that FISA Court appointees be chosen by the President and confirmed by the Senate, just as the members of the Federal Circuit are. I agree. If the FISA court is going to operate in secret, not allow an adversarial process and not allow scrutiny of it's decisions, at the very least it's members should be appointed with a process that is more than just the unilateral say-so of the Chief Justice.