Appointing Democratic Judges to the FISA Court Won’t Solve Its Structural Flaws

Chief Justice Roberts recently named two new judges to the Foreign Intelligence Surveillance Court (FISC) — Judge James P. Jones from the Western District of Virginia and Judge Thomas B. Russell from the Western District of Kentucky. Roberts has now appointed three judges to the FISC since the Snowden revelations, and all three were originally nominated to the bench by a Democratic president (Clinton). This marks a stark departure from Roberts’ thirteen pre-Snowden appointments, eleven of whom were appointed by Republican presidents. The question naturally arises: does this change in composition herald a change in the FISC’s approach?

Roberts’ track record of selecting Republican-appointed judges came under fire when Snowden’s disclosures trained a public lens on the FISC’s operations. Critics argued that conservative judges would be more likely to support government requests to conduct surveillance, and less solicitous of the civil liberties implications, than their progressive counterparts. Among the legislative proposals to reform NSA surveillance were measures to revamp the FISC, including changing the appointment process to guard against ideological bias.

Ideological diversity is a good idea on any court. (Full disclosure: I don’t know enough about either Jones’ or Russell’s rulings to say whether their appointment will affect the court’s ideological balance, particularly since one of the FISC judges being replaced — Mary A. McLaughlin — is herself a Clinton appointee.) But as Steve Aftergood pointed out, there’s no evidence that the ideological makeup of the FISC has influenced its rulings. To the contrary: the FISC’s rate of approving government applications to conduct surveillance has always “hovered near 100%” (Aftergood’s words) — before and after Roberts’ streak of appointing conservatives.

To be sure, there are applications and there are applications. A request to target a named individual based on a showing of probable cause (for communications content) or relevance (for business records) — which is what the FISC generally was reviewing in the pre-Roberts era — is very different from a request to collect Americans’ phone records in bulk on the ground that relevant records may be buried within them. The FISC judge who first endorsed this strained theory of “relevance” to justify the bulk collection of phone records in 2006 was appointed by a Republican president, as were eight of the other ten judges on the court at that time. On the other hand, that decision was based on a 2004 FISC order justifying the bulk collection of Internet metadata that was issued by a Clinton appointee.

Why the bipartisan acquiescence to a legal theory that may charitably be described as far-fetched? Most judges, regardless of their ideology, are happy to defer to the executive branch in matters of national security, whether by declining to exercise jurisdiction at all or by refusing to probe factual claims. There’s a stark division of opinion on whether this is a good thing, but little dispute over the fact itself. Of course, there have always been exceptions — cases in which judges have refused to bow to executive claims of superior expertise and constitutional authority. Anecdotally, such pushback appears to have become more common among regular federal judges since the Snowden disclosures. It’s too soon, though, to say whether this phenomenon signals a broader change in judicial philosophy and, if so, whether it will last.

In any case, there’s another reason why FISC judges, regardless of ideology, are likely to rule in the government’s favor. Because no opposing party is present, FISC judges who rule against government applications are not occupying the familiar role of a neutral adjudicator in a contest between adversaries. Instead, they have effectively become the government’s adversary — or, at least, they may create that perception. Especially in the national security context, few judges are eager to shoulder that role. Hence the iterative back-and-forth described by FISC judges and government officials, in which FISC staff work with Justice Department lawyers to craft an application that the FISC feels it can approve. The FISC is not a “rubber stamp,” as some have suggested, but it clearly sees its job as working in partnership with the executive branch to get to “yes.” Needless to say, that’s not the role courts are supposed to serve under our constitutional system of checks and balances.

The pro-government rulings that result from these dynamics tend to perpetuate themselves. Once a FISC judge has approved a new program or a new type of surveillance, that ruling becomes the only direct precedent on which the other FISC judges may rely. There is no developed body of controlling case law, as there would be in regular federal courts, and no system to resolve differences through ascending levels of appeal. In such circumstances, the natural tendency to rely on the only available precedent would be difficult to overcome.

Finally, even if all eleven FISC judges were determined to resolve any doubt or ambiguity against the government, the law that authorizes the most intrusive NSA surveillance ties their hands. Under Section 702 of the FISA Amendments Act, which authorizes programmatic surveillance of communications between foreign targets and US persons, the court is not allowed to probe the government’s certification of a foreign intelligence purpose, and it has no role in approving the selection of individual targets. Its only substantive job is to approve agency procedures for determining whether a target is “reasonably believed” to be a foreigner overseas, as well as agency procedures for “minimizing” the retention and dissemination of US person information.

To be clear, less deferential rulings on these procedures would be a major step forward. After all, when the FISC approved the NSA’s 2011 minimization procedures, it approved “back door searches” — in which the government, having certified (as the law requires) that it has no interest in particular, known US persons, runs searches against the data it has collected using the phone numbers and e-mail addresses of particular, known US persons. A more searching judicial review also might balk at the provision of the NSA’s targeting procedures that equates the absence of any information about a person’s nationality or location with a “reasonable belief” that the person is a foreigner overseas.

The fact remains that the legal framework is stacked against meaningful judicial review, relegating the FISC to the role of approving general procedures that leave a great deal of discretion to the executive branch rather than applying the law to the specific facts of a particular case. Indeed, the FISC’s role is watered down to the point that it’s not clear whether the court’s operations even square with the requirements of Article III. (That’s the subject of a report I wrote with Faiza Patel, which we’ve also discussed on this blog and on Lawfare.)

In short, a pro-government tilt in FISC proceedings is almost inevitable in light of the deference courts show in national security matters, the lack of an opposing party or an established body of precedent, and the constraints of the governing statute. The political leanings of the court’s judges aren’t the cause of these problems, and adjusting them will not be the solution. 

About the Author(s)

Elizabeth Goitein

Co-Director of the Liberty & National Security Program at the Brennan Center for Justice, Former Counsel to Sen. Russ Feingold Former Trial Attorney in the Federal Programs Branch of the Civil Division of the Department of Justice You can follow her on Twitter (@LizaGoitein).