John Roberts’ Scary Secret Powers
You don’t have to think Edward Snowden is a hero, to be horrified by the latest revelations about the secret workings of the court that approves the president’s many requests for surveillance. Or at least you shouldn’t have to think that.
But revelations by the New York Times and Wall Street Journal in the last few days about the sweeping yet secret workings of the FISA court, appointed solely by Supreme Court Chief Justice John Roberts, have gotten far less attention than Snowden’s original revelations – and far less than they deserve. The man who just presided over a genteel gutting of the Voting Rights Act, who is laying the groundwork for doing away with affirmative action and who may have led his liberal colleagues to dramatically curtail the power of Congress to compel state action with his Obamacare ruling, has huge sway over our national security machinery. He has appointed all the sitting judges, and 10 of 11 are Republicans, with no confirmation or even oversight by Congress. Both of Roberts’ roles are hugely influential, and disturbing.
Meet some of the FISA Judges
On Monday, Digby wrote about the anti-terror paranoia of the secret court’s former Chief Justice Royce Lamberth, who is retiring, as providing a window on the terror hysteria that allows such a fundamental civil liberties institution to be kept entirely secret. In a 2009 interview with the Washington Post, Lamberth broke down in tears as he described a secret briefing about a terrorist threat to Washington, D.C., that he received after 9/11. “My wife and friends live here,” he said. Digby noted that Lamberth’s wife and friends were far more likely to die in car or plane crashes than in terror attacks.
In 2000 the Chicago Tribune called him “Clinton’s judicial nemesis.” To kick off the Clinton years, Lamberth ruled that first lady Hillary Clinton’s healthcare reform task force broke the law by meeting in secret – which was then overturned by an appeals court. He fined health reform consultant Ira Magaziner almost $300,000 for not being sufficiently forthcoming about the makeup of the task force, which was also overturned on appeal. He gave Larry Klayman’s right-wing Judicial Watch his blessing to pursue specious lawsuits that let him depose Clinton administration figures from George Stephanopoulos to James Carville to fundraiser John Huang.
In 2000, he declared that Clinton had committed a crime by releasing private letters written by Kathleen Willey, who claimed he sexually harassed her – and an appeals court rebuked Lamberth. “It was inappropriate for the district court gratuitously to invoke sweeping pronouncements on alleged criminal activity that extended well beyond what was necessary to decide the matter at hand,” the court wrote.
Lamberth also ruled that Obama’s funding for embryonic stem cell research was illegal, which was also overturned. But when it comes to surveillance, he’s been on Obama’s side: Lamberth overturned two other FISA court judges and approved Attorney General Eric Holder’s request to obtain the personal and professional email of Fox News’ James Rosen in connection with a State Department leaks scandal in 2010.
Lamberth isn’t the only Republican-appointed FISA judge who’s shown a propensity to thwart Democrats in non-FISA work. Florida’s Roger Vinson struck down the Obama administration’s healthcare law in 2011 (the Roberts court overruled him). Vinson signed the fateful Verizon order. John Bates of Washington, D.C., was a Whitewater prosecutor. Arkansas Judge Susan Webber Wright held Clinton in contempt of court for lying under oath about his relationship with Monica Lewinsky
In all the recent controversy over the FISA court, Lamberth says only one thing bothers him: the intelligence community and Congress aren’t standing up for the court.
In the filing, embedded below, the Obama Administration Justice Department quotes with approval the Foreign Intelligence Surveillance Court’s own view of its power, expressed in 2007, that “[t]he FISC is a unique court … [o]ther courts operate primarily in public, with secrecy the exception; the FISC operates primarily in secret, with public access the exception.”
The filing, which comes in response to a June lawsuit from the ACLU, coincides with a critical profile by the New York Times that claims the FISA court has “become almost a parallel Supreme Court” with its own “secret body of law” that bolsters the powers of the NSA.