Secret FISA Court – Guess Who Appointed All 11 Judges?

On Sunday, the New York Times?published a report on FISA, the secret Foreign Intelligence Surveillance Court, that has proved to be a real eye-opener. So far, Americans have paid scant attention to FISA and its machinations, but this might get their attention: Chief Justice John G. Roberts appointed all 11 of the judges on the court and will continue to do so for as long as he is Chief Justice–basically, the rest of his life.

The FISA judges serve for seven-year terms. Ten of them are Republicans. Harvard law professor Cass R.Sunstein has written about evidence that:

…federal judges (no less than the rest of us) are subject to group polarization, which exists when like-minded people go to extremes.

Did I mention that what the court does is done in secret, without review, without checks and balances, without hearing more than one side of a case?

Ironically, the court was established in 1978 to keep the government from abusing their wiretapping skills. But in 1989, the Supreme Court established the ‘special needs doctrine’?which overrode the protections in the 4th Amendment against unreasonable searches and seizures. The ruling allowed drug testing of railway workers because it said, as phrased in the New York Times:

… a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger.

What is considered ‘an overriding public danger’ has been greatly expanded over the years, especially since the 9/11 attacks. While the court is cited as a way of combating terrorism, it does far more. Anyone, or any country, that is suspected of being involved in nuclear proliferation or spying can be the target. Would any country then be exempt? Don’t all countries spy? And the targets aren’t just foreign ones. If suspicions fall on the communications of Americans, they (meaning you and I) can have our records seized and examined. And we’re talking about suspicion here, not fact.

What whistleblower Edward Snowden was trying to warn us about is the growth of police state powers – a message that many have tuned out because of their feelings about Snowden, or because of the way their fears have been fanned since 9/11. This growth in powers came out of a move originally meant to protect us from a police state. Talk about unintended consequences, or are they?

The government has to ask FISA for permission before using its surveillance powers. Generally, approval is signed by one judge, depending on whose turn in the rotation it is that day. News organization Reuters found that, from 2001 until 2012, a total of 20,909 requests were granted while only 10 were rejected. Last year, 1,800 requests were made and none were rejected.

There is concern by communications providers that the government is overreaching in its collection of data. The court does sometimes order the destruction of masses of data. But appeals of FISA’s decisions are rare. They are handled by a specially convened Court of Review, but no FISA case has ever been reviewed by the Supreme Court. In other words, FISA, operating in secret, is creating a whole body of law through its rulings that have no input from anyone other than government security agencies. Haven’t we had ample evidence of the reliability of our security agencies with the infamous insistence that Iraq had ‘weapons of mass destruction’? And these are the guys seeking authorization to spy on Americans!

Geoffry R. Stone, professor of constitutional law at the University of Chicago, is disturbed by this development. He pointed out to the New York Times that the adversarial system that shapes laws in American courtrooms does not occur in the FISA? courtroom, saying:

That whole notion is missing in this process.

All Americans need to ask themselves: Am I really okay with eleven men, at least ten of whom are from the conservative end of the political spectrum, allowing the government to have complete control and relatively easy access to my private life? If the answer is no, we need to pressure Congress to review and repeal these special powers, or elect representatives who will. If the answer is yes, then I hope you enjoy the view from between your prison bars.

Edited and published by WP.

I'm a lifelong liberal, a social/political activist, a writer and blogger. I've been through many incarnations, including 20 years as a psychotherapist and 10 years as an astrologer. However, writing and social justice have always been my passions. That's the way I was raised: much thanks, Dad! I look forward to many more transformations as life goes on. For more, please join me on Facebook. or Twitter @thepolitcali_1