The scandal over the National Security Agency’s surveillance of Americans has cast a spotlight on the nation’s most top-secret group of judges — the Foreign Intelligence Surveillance Act (FISA) court.
That court is made up of 11 judges drawn from various federal courts who approve the government’s requests for warrants to listen in on conversations in the United States. The vast majority of the judges who’ve sat on the court are conservative Republicans, Reuters reports today in a detailed story on the FISA court judges.
“Since FISA was enacted in 1978, we’ve had three chief justices, and they have all been conservative Republicans, so I think one can worry that there is insufficient diversity,” American University law professor Stephen Vladeck told Reuters.
The judges on that court include Roger Vinson (who struck down Obamacare), Susan Webber Wright (who presided over Paula Jones’ harassment case against Bill Clinton), and John Bates (a prosecutor in the notorious Clinton-era Whitewater scandal). Former prosecutor Mary A. McLaughlin is the only Democrat.
The FISA judges stop working on their normal cases every few months and go to Washington, where they sit in a windowless room and question prosecutors and federal agents, Reuters reports.
Before 1978, the federal government used to wiretap Americans who allegedly threatened national security without having to obtain a warrant. The FISA court was established after the Supreme Court said warrantless wiretapping was illegal.
That court has changed a lot since 9/11, NPR’s Nina Totenberg has reported. Before 9/11, she reported, the government had to get a warrant based on suspicions about a specific individual. Now the FISA court doesn’t get involved in the specifics of who’s being surveilled, she reports.
“The FISA court is just reviewing at a very programmatic level: Is the government targeting only international communications, or is it impermissibly targeting domestic ones? That’s the only question that the FISA court asks,” Jameel Jaffer of the ACLU told her.
In short, another source told her, the FISA court has been “defanged.”
Reggie Walton, the FISA court’s senior judge, rejects the notion that the court doesn’t have enough questions. He sent this statement to Reuters:
The perception that the court is a rubber stamp is absolutely false. There is a rigorous review process of applications submitted by the executive branch, spearheaded initially by five judicial branch lawyers who are national security experts, and then by the judges, to ensure that the court’s authorizations comport with what the applicable statutes authorise.
Head over to Reuters to learn more about Walton and the other FISA court judges.
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