NYT: Roberts's Picks Reshaping Secret Surveillance Court

http://www.nytimes.com/2013/07/26/us/politics/robertss-picks-reshaping-secret-surveillance-court.html

JULY 25, 2013

Roberts's Picks Reshaping Secret Surveillance Court

By CHARLIE SAVAGE

WASHINGTON -- The recent leaks about government spying programs have focused attention on the Foreign Intelligence Surveillance Court and its role in deciding how intrusive the government can be in the name of national security. Less mentioned has been the person who has been quietly reshaping the secret court: Chief Justice John G. Roberts Jr.

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.

Though the two previous chief justices, Warren E. Burger and William H. Rehnquist, were conservatives like Chief Justice Roberts, their assignments to the surveillance court were more ideologically diverse, according to an analysis by The New York Times of a list of every judge [1] who has served on the court since it was established in 1978.

According to the analysis, 66 percent of their selections were Republican appointees, and 39 percent once worked for the executive branch.

"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 Senator Richard Blumenthal, a Connecticut Democrat and one of several lawmakers who have sought to change the way the court's judges are selected.

Mr. Blumenthal, for example, has proposed [2] that each of the chief judges of the 12 major appeals courts select a district judge for the surveillance court; the chief justice would still pick the review panel that hears rare appeals of the court's decisions, but six other Supreme Court justices would have to sign off. Another bill, introduced [3] by Representative Adam B. Schiff of California, would give the president the power to nominate judges for the court, subject to Senate approval.

Chief Justice Roberts, through a Supreme Court spokeswoman, declined to comment.

The court's complexion has changed at a time when its role has been expanding beyond what Congress envisioned when it established the court as part of the Foreign Intelligence Surveillance Act. The idea then was that judges would review applications for wiretaps to make sure there was sufficient evidence that the F.B.I.'s target was a foreign terrorist or a spy.

But, increasingly in recent years, the court has produced lengthy rulings interpreting the meaning of surveillance laws and constitutional rights [4] based on procedures devised not for complex legal analysis but for up-or-down approvals of secret wiretap applications. The rulings are classified and based on theories submitted by the Justice Department without the participation of any lawyers offering contrary arguments or appealing a ruling if the government wins.

The court "is becoming ever more important in American life as more and more surveillance comes under its review in this era of big data," said Timothy Edgar, a civil liberties adviser for intelligence issues in both the Bush and Obama administrations. "If the court is seen as skewed or biased, politically or ideologically, it will lose credibility."

At a public meeting this month, [5] Judge James Robertson, an appointee of President Bill Clinton who was assigned to the surveillance court in 2002 by Chief Justice Rehnquist and resigned from it in December 2005, offered an insider's critique of how rapidly and recently the court's role has changed. He said, for example, that during his time it was not engaged in developing a body of secret precedents interpreting what the law means.

"In my experience, there weren't any opinions," he said. "You approved a warrant application or you didn't -- period."

The court began expanding its role when George W. Bush was president and its members were still assigned by Chief Justice Rehnquist, who died in 2005. Midway through the Bush administration, the executive branch sought and obtained the court's legal [6] blessing to continue secret surveillance programs that had originally circumvented the FISA process.

The court's power has also recently expanded in another way. In 2008, Congress passed the FISA Amendments Act to allow the National Security Agency to keep conducting a form of the Bush administration's program of surveillance without warrants on domestic soil so long as only foreigners abroad were targeted. It gave the court the power to create rules for the program, like how the government may use Americans' communications after they are picked up.

"That change, in my view, turned the FISA court into something like an administrative agency that makes rules for others to follow," Judge Robertson said. "That's not the bailiwick of judges. Judges don't make policy."

For the most part, the surveillance court judges -- who serve staggered seven-year terms and take turns coming to Washington for a week to handle its business -- do not discuss their work, and their rulings are secret. But the documents leaked by Edward J. Snowden, a former N.S.A. contractor, have cast an unusual spotlight on them.

The first of the documents disclosed by Mr. Snowden was a top-secret order to a Verizon subsidiary [7] requiring it to turn over three months of calling records for all its customers. It was signed by Judge Roger Vinson, an appointee of President Ronald Reagan who had previously achieved prominence in 2011 when he tried to strike down the entirety of President Obama's health care law. [8]

Chief Justice Roberts assigned Judge Vinson to the surveillance court in 2006, one of 12 Republican appointees, compared with 2 Democratic ones.

While the positions taken by individual judges on the court are classified, academic [9] studies [10] have shown that judges appointed by Republicans since Reagan have been more likely than their colleagues to rule in favor of the government in non-FISA cases over people claiming civil liberties violations. Even more important, according to some critics of the court, is the court's increasing proportion of judges who have a background in the executive branch.

Senator Blumenthal, citing his own experience as a United States attorney and a state prosecutor, said judges who used to be executive branch lawyers were more likely to share a "get the bad guys" mind-set and defer to the Justice Department if executive branch officials told them that new surveillance powers were justified.

Steven G. Bradbury, who led the Justice Department's Office of Legal Counsel in the second term of the Bush administration, argued that it made sense to put judges who were executive branch veterans on the court because they were already familiar with the issues. And he challenged the claim that they would be more deferential.

"When it comes to highly technical national security issues, I really think there is value in a judge being a former prosecutor or a former government lawyer who understands how the executive branch works," he said, adding that such judges "will be familiar with the process and able to ask the tough questions and see where the weak points are."

Either way, an executive branch background is increasingly common for the court.

When Judge Vinson's term ended in May, for example, Chief Justice Roberts replaced him with Judge Michael W. Mosman, who was a federal prosecutor before becoming a judge.

Other current judges include 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.

Stephen Vladeck, an American University law professor, said having executive branch veterans -- including what he called "law-and-order Democrats" -- on the court carried advantages because they brought experience with security issues. But the downside, he argued, is that they may also be unduly accommodating to government requests.

"The further the court's authority has expanded from where it was in 1978, the greater the need has been for independent-minded government skeptics on the court," he said.

Chief justices have considerable leeway in choosing judges -- the only requirement is that they ensure geographic diversity. In practice, according to people familiar with the court, they have been assisted in evaluating whom to select by the director of the Administrative Office of the United States Courts. The counselor to the chief justice and the surveillance court's presiding judge also sometimes play a role. Judges sometimes volunteer for consideration, while chief justices and their advisers sometimes come up with their own ideas.

Generally, the people familiar with the court said, evaluations have been based on reputation, workload, willingness to undergo an intrusive background check, and experience in security issues. Judges have served an average of 15 years before being assigned to the surveillance court.

Chief Justice Roberts has dealt with a small circle. His past two choices to direct the judiciary's administrative office have been Republican-appointed judges, Thomas F. Hogan and John D. Bates, whom he also appointed to the surveillance court.

Representative Steve Cohen, Democrat of Tennessee, who has filed a bill that would let Congressional leaders pick eight of the court's members, said it was time for the court to have a more diverse membership.

"They all seem to have some type of a pretty conservative bent," he said. "I don't think that is what the Congress envisioned when giving the chief justice that authority. Maybe they didn't think about the ramifications of giving that much power to one person."

[1] http://www.documentcloud.org/documents/727664-fisc-fiscr-members-1978-2013.html

[2] https://www.documentcloud.org/documents/727941-fisa-proposal-one-pager-7-10-13.html

[3] https://www.documentcloud.org/documents/728775-fisa-nomination-bill.html

[4] http://www.nytimes.com/2013/07/07/us/in-secret-court-vastly-broadens-powers-of-nsa.html

[5] http://www.nytimes.com/2013/07/10/us/nation-will-gain-by-discussing-surveillance-expert-tells-privacy-board.html

[6] http://www.nytimes.com/2013/06/28/us/nsa-report-says-internet-metadata-were-focus-of-visit-to-ashcroft.html

[7] http://www.nytimes.com/2013/06/06/us/us-secretly-collecting-logs-of-business-calls.html

[8] http://www.nytimes.com/2011/02/01/us/01ruling.html

[9] http://www.umassd.edu/media/umassdartmouth/politicalscience/facultydocs/klmjudic04.pdf

[10] http://www.brookings.edu/research/books/2006/arejudgespolitical