We Need a Better Way to Pick FISA Court Judges
When John G. Roberts Jr. appeared before the Senate Judiciary Committee that was weighing his nomination as chief justice, he was asked about the then-obscure Foreign Intelligence Surveillance Court, whose members are federal district judges appointed by the chief justice.
The FISA court, as it’s known — after the Foreign Intelligence Surveillance Act that created it — meets in secret to consider requests from the government for electronic surveillance of both suspected foreign agents and terrorists in the United States and foreign “targets” abroad. Among the documents released by NSA leaker Edward Snowden was an order from the court authorizing the collection of telephone metadata of American citizens.
“When I first learned about the FISA court, I was surprised,” Roberts told the committee. “It’s not what we usually think of when we think of a court. We think of a place where we can go, we can watch, the lawyers argue, and it’s subject to the glare of publicity. And the judges explain their decision to the public and they can examine them.”
But now, some civil libertarians fear, Roberts has accustomed himself to the closed nature of the court and is using his appointment authority to “pack” it with judges who will rubber-stamp invasions of privacy.
Without exactly making that argument, Washington Post columnist Ezra Klein noted that “Roberts’ 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 the rest of the law too.” (I’m not sure what the relevance of the judge’s view of Obamacare is.)