Of course, there are important differences. None of the judges of the FISA court were vetted by Congress. They were appointed by a single unelected official: John Roberts, the chief justice of the Supreme Court. And then there’s the fact that “the FISA court hears from only one side in the case—the government—and its findings are almost never made public.” A court that is supreme, in the sense of having the final say, but where arguments are only ever submitted on behalf of the government, and whose judges are not subject to the approval of a democratic body, sounds a lot like the sort of thing authoritarian governments set up when they make a half-hearted attempt to create the appearance of the rule of law.
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.
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.)
When he was in his late 20s, John Roberts was a foot soldier in the Reagan administration’s crusade against the Voting Rights Act. Now, as chief justice of the Supreme Court, he will help determine whether a key part of the law survives a constitutional challenge.
Memos that Roberts wrote as a lawyer in President Reagan’s Justice Department during the 1980s show that he was deeply involved in efforts to curtail the effectiveness of the Voting Rights Act, the hard-won landmark 1965 law that is intended to ensure all Americans can vote. Roberts’ anti-VRA efforts during the 1980s ultimately failed. But on Wednesday, when the Supreme Court hears oral arguments in Shelby County v. Holder, he’ll get another chance to gut the law. Roberts’ history suggests a crucial part of the VRA may not survive the rematch.
At issue in Shelby County is whether a major portion of the Voting Rights Act, called Section 5, is constitutional. Section 5 compels jurisdictions with a history of discrimination, mostly in the South, to ask the Justice Department for permission—preclearance, in legalese—before making any changes to election laws. Shelby County, Alabama, is arguing that Section 5 is an extreme measure that is no longer justified because racism is no longer the problem it once was. If Section 5 is overturned, voting rights groups say, the federal government’s ability to ensure Americans are not denied the right to vote on the basis of race—at a time when race has been used as a proxy for party identification—will be severely weakened.
Shelby County offers Roberts an opportunity to complete a mission he began three decades ago. When the chief justice was a young lawyer, in 1981, Southern legislators hoped an ascendant conservative movement could pressure Reagan into opposing an extension of the VRA. In June of that year, Reagan wrote a letter to Attorney General William French Smith requesting an “assessment” of the law.
The U.S. Supreme Court on Monday allowed a controversial state DNA testing law to remain in effect until the justices have time to consider the broader constitutional questions.
Maryland’s DNA Collection Act permits police to collect genetic material from those who have been arrested, but not yet convicted.
Chief Justice John Roberts issued the three-page in-chambers opinion, putting a state court’s ruling favoring a criminal defendant on hold.
“Collecting DNA from individuals arrested for violent felonies provides a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population,” Roberts wrote. “Crimes for which DNA evidence is implicated tend to be serious, and serious crimes cause serious injuries. That Maryland may not employ a duly enacted statute to help prevent these injuries constitutes irreparable harm.”
The chief justice said there is a “fair prospect” the Supreme Court would ultimately find in favor of the state on the search and seizure questions.
After more legal briefs are filed, the high court in coming weeks will decide whether to hear the case and issue a definitive, binding ruling. Oral arguments would likely not be held until early next year.
A 1994 federal law created a national database in which local, state, and federal law enforcement agencies can compare and share information on DNA matches from convicted felons, but courts have been at odds on just when such samples can be collected and the information distributed.
Last week, a New York Times/CBS poll found that only 44 percent of Americans approve of the Supreme Court’s job performance and 75 percent say the justices are sometimes influenced by their political views. But although the results of the poll were striking, commentators may have been too quick to suggest a direct link between the two findings. In the Times article on the poll, for example, Adam Liptak and Allison Kopicki suggested that the drop in the Court’s 66 percent approval ratings in the late 1980s “could reflect a sense that the court is more political, after the ideologically divided 5-to-4 decisions in Bush v. Gore and Citizens United.” At the beginning of his tenure, Chief Justice John Roberts said that he subscribed to a similar theory. “I do think the rule of law is threatened by a steady term after term after term focus on 5-4 decisions,” Roberts told me.
But a new study by Nathaniel Persily of Columbia Law School and Stephen Ansolabehere of Harvard suggests that the relationship between the Court’s declining approval ratings and increased perceptions of the Court’s partisanship may be more complicated than the New York Times and the Chief Justice suggest.
On the campaign trail, Roy Moore wears a metal pin of a cross on his suit jackets, praises “almighty God” and refers to the United States as a “Christian nation.”
But there is one demonstration of his faith that Mr. Moore, the Republican nominee for chief justice of the Alabama Supreme Court, promises not to make.
“No, I won’t bring back the Ten Commandments,” he said. “Not again.”
It has been nearly a decade since Mr. Moore, then chief justice, became a focus in the national debate over religious liberty by defying a federal order to remove a 5,000-pound granite statue of the holy tablets from his Montgomery courthouse. He lost the fight and was removed from the bench by a state ethics panel in 2003.
But Mr. Moore, 65, is on the verge of a political comeback. In an upset two weeks ago, he won the Republican nomination without a runoff, against two far better financed opponents, including the current chief justice.
Although Mr. Moore speaks about a wide range of conservative issues during the campaign, including repealing the federal health care law and reducing the nation’s debt, most questions from reporters and his audiences have to do with the Ten Commandments.