Reporting today for the New York Times Charlie Savage describes how Chief Justice Roberts appointments to the FISA court have played a role in creating what critics call the secret “parallel Supreme Court“.
In making assignments to the court, Chief Justice Roberts, more than his predecessors, has chosen judges with conservative and executive branch backgrounds that critics say make the court more likely to defer to government arguments that domestic spying programs are necessary.
Ten of the court’s 11 judges — all assigned by Chief Justice Roberts — were appointed to the bench by Republican presidents; six once worked for the federal government. Since the chief justice began making assignments in 2005, 86 percent of his choices have been Republican appointees, and 50 percent have been former executive branch officials.
As the Obama Administration increases its arsenal of surveillance and secret policing tools it grounds the legality of their use at home and abroad on classified FISA court rulings. Secret rulings have been piling up since the Bush Administration that expand the NSA’s authority to: warrantlessly wiretap phones, collect vast sums of communications data in blanket searches of unspecified targets, justify particular types of surveillance like court ordered handovers of metadata from telecoms and in general broaden the definitions of what constitutes foreign surveillance. These legal rulings are creating a growing body of precedents that legitimate the government’s use of vast spying programs. Without lawyers to challenge FISA court decisions, in the absence of an appeals process and in the shadows of a secret tribunal these judges are defining the sweeping reach of America’s surveillance apparatus and they are doing so shielded from public scrutiny.
The FISA court’s overwhelming majority of Republican and former federal prosecutors makes the complexion of the secret court ideologically uniform. Serving as the sole arbiter on surveillance issues, decisions are being reached without any independent adversarial process to check the powers bestowed to this court. This court is doing more than providing the Obama Administration the legal precedents it requires to carry out its massive surveillance programs. It is forging new relations of power between those with the authority to surveil (the phalanxes of surveillance state officers working both directly for the intelligence and police agencies and as private surveillance subcontractors) and everyone else who will be indiscriminately subjected to surveillance regardless of suspicion of wrong doing. At a time when the FISA court is playing a greater role in both the private lives of Americans and people across the world being secretly surveilled by a foreign government, the extreme bent of the judges to defer decisions on the size and scope of the surveillance state to The Administration is dangerous. The greater role this court has come to play in arbitrating how deeply surveillance will be embedded into human life reflects the power the government has invested it. In turn the FISA court issues secret ruling after secret ruling to bolster The Administration’s power to monitor the lives of its subjects. When courts become tools to legitimate and expand the power of rulers lines are blurred and tyranny consolidated.