Many people, including myself, may not know that the conservative Supreme Court chief justice picks the super secret Foreign Intelligence Surveillance Court that has become less secret since Edward Snowden made his announcements about the National Security Agency spying on all the people in the United States. Ten of the court’s 11 judge, appointed to the bench by GOP presidents, have been assigned to this all-important court by Chief Justice John G. Roberts, Jr.
The court’s conservative bent—maybe more of a far-right curve—will most likely give it a tendency to follow NSA’s desire to expand its spying program. Roberts’s assignments have been far less ideologically diverse than those of the two previous chief justices, Warren E. Burger and William H. Rehnquist, despite their own conservative leanings. Robert’s assignments have been 86 percent GOP appointees, compared to the 66 percent GOP appointees by the other two justices.
“Viewing this data, people with responsibility for national security ought to be very concerned about the impression and appearance, if not the reality, of bias—for favoring the executive branch in its applications for warrants and other action,” said Sen. Richard Blumenthal (D-CT). He proposed that each of the chief judges of the 12 major appeals courts select one district judge for FISC. The chief justice could still select the review panel that hears appeals of the court’s decision, but the selection would have to be approved by six other Supreme Court justices. Rep. Adam B. Schiff (D-CA) has introduced a bill moving the selection of FISC judges to the president.
When FISC was established as part of the Foreign Intelligence Surveillance Act 35 years ago, its purpose was to review applications for wiretaps regarding whether there was sufficient evidence that the FBI’s targeted person was a foreign terrorist or spy. As recently as 2005, according to former FISC Judge James Robertson, “In my experience, there weren’t any opinions. You approved a warrant application or you didn’t—period.”
Midway through the George W. Bush administration, the executive branch sought and obtained the court’s legal blessing to continue secret surveillance programs that had originally circumvented the FISA process. In 2008, Congress passed the FISA Amendments Act to allow NSA to continue the Bush warrantless program supposedly only on foreigners abroad. The court was allowed to create rules for the program, giving it the power of an administrative agency that makes rules for others to follow. Robertson said, “That’s not the bailiwick of judges. Judges don’t make policy.”
Rulings have greatly expanded to lengthy ones that interpret the meaning of surveillance laws and constitutional rights instead of the former up-or-down approvals of secret wiretap applications. Court decisions are classified with no opportunity for contrary arguments or appeals if the government wins the case. The public doesn’t know what FISC determines—sort of like a person on the “do not fly” list not knowing they are there until they try to fly or not knowing whether they’ve successfully gotten off until they try to board a plane.
At least no one knew what the court was doing until Snowden released information about an order to a Verizon subsidiary requiring it to submit three months of calling records for all customers, signed by Judge Roger Vinson, Reagan’s appointee who tried to strike down Obamacare.
Blumenthal, a past U.S. attorney and state prosecutor, said that executive branch lawyers were more likely to have a “get the bad guys” mentality and cooperate in giving the Justice Department unlimited surveillance powers. Vinson has been replaced with Michael W. Mosman, a federal prosecutor; Raymond J. Dearie, a United States attorney; Reggie B. Walton, a prosecutor who also worked on drug and crime issues for the White House; and F. Dennis Saylor IV, chief of staff in the Justice Department’s Criminal Division. The only Democratic appointee, Judge Mary A. McLaughlin, was also a prosecutor.
The only requirement for selection of judges is geographic diversity. Rep. Steve Cohen (D-TN) has filed a bill allowing Congressional leaders to pick eight of the court’s members because the court should have a more diverse membership.
Last week, the House voted 217-205 not to check NSA’s phone-spying dragnet, with 111 Democrats and 94 Republicans voting to not fund the phone-call collection program. In a Guardian article, Glenn Greenwald gives a vivid detailed picture of the peculiar coalition that voted to continue the NSA program. Conservative Republicans against the president’s administrative abuse of power joined liberal Democrats opposed to intrusive intelligence programs.
President Obama’s strongest support in war, assassinations, drones, surveillance, and secrecy comes from the radical far-right GOP party. Pro-war and anti-Muslim Rep. Peter King (R-NY) has given extensive praise to the president as did Rep. Michele Bachmann (R-MN) who repeatedly warned that NSA bulk spying on U.S. citizens was necessary to stop “Islamic jihadists.” The conservative wing of the Supreme Court supported the president in his argument that plaintiffs objecting to surveillance lack standing to sue because the NSA successfully conceals the identity of which Americans are subjected to the surveillance. Thus government wiretapping laws cannot be challenged in court.
An analysis of campaign donations for the bill shows that House members who voted to continue NSA’s metadata spy program collected 122 percent more money from defense and intelligence contractors than those who voted against it. Firms such as Lockheed Martin, Boeing, United Technologies, and Honeywell International donated almost $13 million for the years 2011-12. Legislators who voted for NSA’s program averaged $41,635; the naysayers averaged $18,765. Only one of the top ten money makers, Rep. Jim Moran (D-VA) voted against the program.
Tea Party member Rep. Justin Amash (R-MI), who proposed the bill with Rep. John Conyers (D-MI), got $1,400, which put him in the bottom 50 in donations. Rep. Howard McKeon (R-CA), who voted to continue the surveillance, led the House in defense contributions with $526,000. House Speaker John Boehner (R-OH) voted against the measure and ranked 15th in defense earnings with a $131,000 take. Another vote to keep the surveillance came from House Minority Leader Nancy Pelosi (D-CA), who got $47,000 from defense firms during the two-year period.
Two 2016 GOP presidential wannabes showed the differences among the GOP membership regarding the surveillance program. New Jersey Gov. Chris Christie called Kentucky Sen. Rand Paul’s “strain of libertarianism” on national security “very dangerous.” Paul retorted in a tweet:
“Christie worries about the dangers of freedom. I worry about the danger of losing that freedom. Spying without warrants is unconstitutional.”
The two men are topping the list of a very diverse—let’s say wingnut—set of potential candidates for the GOP primary.
Sen. Ron Wyden (D-Ore.) on Tuesday urged the United States to revamp its surveillance laws and practices, warning that the country will ‘live to regret it’ if it fails to do so. That time is getting closer. The Pentagon is sending two blimps to hover over Washington that can surveil the area for 320 miles in every direction. The ostensible reason is to look for threats.
The question is what else they will see while they’re 10,000 feet up in the air looking at an area from Niagara Falls (NY) to North Carolina. I agree with Marc Rotenberg, executive director of the Electronic Privacy Information center, when he said, “When the government is conducting real-time aerial surveillance within the United States, there are privacy issues that need to be addressed.”
If you wonder how legislators feel about privacy, follow the money.