For spy court judges, overseeing America's surveillance efforts is a part-time job

For spy court judges, overseeing America's surveillance efforts is a part-time job

Summary: What boggles the mind is not the choice of judges (both are competent and seasoned jurists). Instead, it's that the job is part-time.

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Supreme Court Chief Justice John Roberts today appointed two currently-sitting U.S. judges to the eleven-member Foreign Intelligence Surveillance Court and the three-member Foreign Intelligence Surveillance Court of Review (which oversees the lower eleven-member court). These are the two closed-door courts that have the responsibility for overseeing domestic national security surveillance requests.

What boggles the mind is not the choice of judges (both are competent and seasoned jurists). Instead, it's that the job is part-time.

According to The Hill, "James Boasberg, a judge on the District of Columbia District Court, has been appointed to serve on the U.S. Foreign Intelligence Surveillance Court. Richard Tallman, on the U.S. Court of Appeals for the Ninth Circuit, will serve on the Foreign Intelligence Surveillance Court of Review."

The new judges

James E. "Jeb" Boasberg has been a judge since 2002 and before that spent a little over five years prosecuting homicides as Assistant United States Attorney in DC. His current responsibility is as one of thirteen District Judges in the DC court. While the court handles the normal sorts of federal cases any district court manages, the DC district court also adjudicates front page cases like the trial of Scooter Libby, former aide to Dick Cheney, the trial of former Alaska Senator Ted Williams, and the trial of lobbyist Jack Abramoff, and even the Guantanamo detainee habeas corpus trials.

Richard Charles Tallman has been a judge on on the United States Court of Appeals for the Ninth Circuit since May of 2000. Prior to that, Tallman had been in private practice for 17 years and earlier was a Justice Department trial lawyer and an assistant U.S. Attorney. The Ninth Circuit Court has its headquarters in San Francisco and hears federal appeals cases for most west coast states. The court has 25 lawyers, but also is known to have such a backlog of cases that Tallman testified before the Senate Judiciary Committee about the need to reorganize the court.

The FISC court

There is no doubt these are very busy judges with a lot of claims on their time and attention. They already have a lot of responsibility and while appointment to FISC and the FISC court of review may be valuable career moves, the increase in responsibility is tremendous.

As I wrote back in December, the so-called "spy courts" review thousands of surveillance requests and, "with the level of technical and national security detail each petition contains, it's impossible for the judges to review each in anything resembling sufficient detail."

It would be impossible for eleven judges to review clandestine surveillance requests even if all the judges were working full time. Buried as the last sentence in The Hill's report on the appointment of the new judges was this statement: "Both will keep their current posts while in their new roles."

That's right. Overseeing America's hidden surveillance efforts is a part-time job. Boasberg and Tallman are not alone. Many of the eleven FISC judges split their time between very visible traditional judgeships and the hidden court.

Other two-timing FISC judges

For example, FISC presiding judge Reggie Barnett Walton has a day job as a federal judge on the United States District Court for the District of Columbia.

One of the earliest sitting FISC judges, appointed in 2008 is James Block Zagel. Zagel currently also serves as district judge for the United States District Court for the Northern District of Illinois. Zagel apparently gets around. Well before his FISC gig, he also had bit parts in two movies and wrote a novel about robbing the Federal Reserve Bank.

Rosemary Mayers Collyer, who coincidentally was born in the same town as I was, will serve on FISC until 2020. She spends most of her time as district judge for United States District Court for the District of Columbia. She was preceding on the District Court bench by everyone's favorite U.S. v. Microsoft judge, Thomas Penfield Jackson.

Deeply disturbing

I find the part-time nature of FISC judgeships to be deeply disturbing. Many have accused FISC of being a "rubber stamp" court, including some of ZDNet's own contributors. I, too, have gone on record as being concerned that the workload required by the flow of surveillance requests was greater than could be handled by seven non-technical judges.

But that was before it was clear that these judges were only giving a small part of their share of mind to something as deeply important as preserving America's Constitutional right to privacy.

By the very nature of the FISC court and its oversight court, there is no outside review of federal agency surveillance requests. They are the final and ultimate protectors of individual privacy as it pertains to domestic surveillance. There is no appeal and there is no spotlight of press and politics. By design (and to some degree necessity), what the court does is done under cloak of darkness and protected by the dagger of federal prosecution and National Security Letters.

I've gone on record repeatedly about the importance of the NSA's surveillance efforts in preventing further terrorist activities. The challenge is huge and the stakes are nothing short of the lives of American citizens and the protection of America's infrastructure. National security is essential and in a world that communicates digitally, digital surveillance of suspected terrorists and their affiliated actors is a necessity.

But allowing our national security professionals extraordinary powers requires extraordinary oversight. That's how America handles issues of great complexity: checks and balances. FISC exists because Congress (in a strange fit of actual awareness and competence) understood that if our agencies were given substantial powers of surveillance, they had to be watched over to prevent abuse.

This is not because any agency is inherently bad or evil, but because human nature is what it is, and left unchecked, people tend to push their luck. FISC is intended to provide two important brakes on the potential of runaway surveillance. First, it oversees actual requests and -- supposedly after careful review -- either grants or denies those requests. Second, it offers a promise of oversight, preventing those who might otherwise casually decide to dig around where they don't belong (especially since it's all very secret to begin with) the promise that someone in authority is watching and checking their work.

FISC therefore is incredibly important as the agent of protection that allows America to have extreme surveillance of suspected enemy actors and yet protect our Constitutional freedoms.

No attempt has been made to hide the dual affiliation of the FISC judges. On some level we were all aware that the judges had other ongoing responsibilities. Even the Wikipedia pages for most of the FISC judges list their dual court appointments.

And yet, it becomes abundantly clear that there is no way the FISC process can successfully evaluate each surveillance request. With the more clarified awareness that the FISC judges are only working part-time on oversight, it becomes even more obvious that there must be systemic problems with this highly-critical oversight mechanism.

This is not a three-letter-agency thing. This is not an NSA thing, a CIA thing, or even an FBI thing. This is a question of how the Supreme Court and the National Command Authority prioritizes the oversight of these agencies and their activities.

When the Chief Justice of the Supreme Court appoints someone who is already in another gig (and who is keeping that very time-consuming job), he makes it clear that the highest court places a lesser priority on the privacy and security of the Americans they are responsible for protecting.

There is no excuse for hiring part-time judges. There is no need to hire part-time judges (there are certainly qualified people who can give the entirety of their attention to this most serious of responsibilities). And the practice of hiring part-time judges diminishes the case made by our national security agencies that they do have external oversight, making it harder for them to carry out their essential responsibilities of protection of American citizens and prosecution of America's enemies.

I call on Congress, the President, and the Supreme Court to reconsider the way FISC judges are appointed and reevaluate where oversight fits in the national security equation.

By the way, I'm doing more updates on Twitter and Facebook than ever before. Be sure to follow me on Twitter at @DavidGewirtz and on Facebook at Facebook.com/DavidGewirtz.

Topics: Privacy, Government, Government US, Security

About

David Gewirtz, Distinguished Lecturer at CBS Interactive, is an author, U.S. policy advisor, and computer scientist. He is featured in the History Channel special The President's Book of Secrets and is a member of the National Press Club.

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26 comments
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  • A well reasoned POV. However, you are trying to fix an inherently flawed

    and broken system based upon a premise that can't be fixed.

    Secret courts are intrinsically and fatally flawed by their very nature - irregardless of how noble the intentions or reasons for their existence are.

    To create a SECRET AND PERMANENT bureaucracy that would adequately provide the level of required oversight is to invite the possibility for a separate ruling governmental body "residing in undisclosed locations".

    Our Government wishes to use deadly force to stop terrorists (regardless of citizenship because there have been Americans targeted in the past). Stopping terrorist's activities is a noble cause. However, our Government wishes to make those actions "legal" by having some secret "pre-trial" - for lack of a better term - sanction that act.

    Are you not arguing that our Government should have a public policy sanctioning, thru the actions of a secret court or bureaucratic body, assassinations (or of any collateral damage to other individuals which are a result of those actions) directed against any citizen of the world deemed to be a terrorist threat against the US (or, I suppose, it's allies) without so much as a public trial before such action takes place?

    Would you be comfortably with the prospect of US citizens voting for such a proposal or to make that policy part of the US Constitution thru the addition of a constitutional amendment?
    kenosha77a
    • What do you suggest?

      We've decided, along with most other largish countries, that espionage and covert operations are necessary for national defence (but if you want to propose abolishing the CIA or other intelligence agencies, then speak up and make sure you honestly discuss the pros and cons), and by their very nature, those operations need to be secret. It therefore makes sense to provide judges who can work in secret to make sure participants follow the laws (especially the Constitution). FISC may or not be the best possible solution to this problem, but it's a lot better than no judicial oversight at all, which is what we had before it was created (and there were abuses, as documented by the Church Committee and others).
      John L. Ries
      • Well, there you are, John. You asked the question. What do I suggest?

        You realize, of course, we are way off topic by now. But I will try to tackle a most difficult subject in the least amount of time.

        One should start by reviewing the history of the Patriot Act which, among other things, authorized the FISC system. It should be noted that Senator Patrick J. Leahy of Vermont, currently the Senate Judiciary Committee Chairman and a co-author of the original Patriot Act, has expressed an opinion that it is now in the best interests of the country to repeal provisions of the Patriot Act that the intelligence community has relied on to collect all Americans' phone records.

        Suffice it to say that even the author of the Patriot Act finds it hard to justify the process by which the FISC system is currently charged to perform - noting that efforts to amend the Patriot Act have failed due, in no small part, to secrecy rules preventing a full debate on the matter.

        And that's the key problem with secrecy and courts for what is a court if not a sanctioned forum for debate - and to allow actions based upon the results of that debate. If any debate fails to allow for the expression of all pertinent issues then how can justice be obtained? How can justice be provided if the accused cannot face and confront his accusers or even speak in his defense?

        That's why, in my original post, I believed David was suggesting a means to improve a system of judicial oversight that cant be improved since it's fatally flawed due to it's reliance on secrecy. And, BTW, I would not agree with your assumption that the current FISC process is better than no judicial oversight at all since the same manner of abuses occur either way.

        Now, on the broader topic of national security that you called me out on, I have this to say. I endorse the continued existence of the military, the CIA, FBI, NSA and any other military or intelligence organizations the United States elected officials have authorized to safeguard the security of it's citizens and that the Supreme Court has decreed to be Constitutional.

        What I don't endorse is the pseudo legal veneer associated with "legally sanctioned" secret national security operations like rendition or the secret courts that allowed those practices to exist.

        I believe in the legality of secret Executive Actions sanctioned by the President which safeguard the National Security since he is Constitutionally bound, as Commander-In-Chief, to safeguard the Nation but even the President is accountable for his actions. And he is held accountable in a public forum.

        But the actions of a secret court are accountable to no one. That is the fatal flaw of a “Star Chamber” system of justice. The FISC system is very close to being a “Star Chamber” situation, IMO.

        I don't endorse delegating authority (to initiate executive actions) to anyone other than the President - even if the President issues an executive action directive delegating such authority. I would find that action unconstitutional. (In the real world, such delegated authority has existed. One example of such delegated authority was the legal permission to release nuclear weapons by US naval submarine commanders in lieu of a direct order to do so from the President. That policy, thankfully, has since been changed.)
        kenosha77a
        • I think the PATRIOT Act should either be scaled back or repealed...

          ...but FISC was created by the Foreign Intelligence and Surveillance Act in 1978, so it significantly predates 9/11 or the PATRIOT Act.

          The heads of the various intelligence agencies are appointed by the President and serve at his pleasure, so he is ultimately responsible for the surveillance requests those agencies make, but it's hard to hold the President accountable to the public for actions that are not public knowledge, which is why FISC was created. I think an adversarial process would be beneficial (which is why I favor proposals for a "devil's advocate"), but I don't think it's reasonable to notify the proposed targets so they or their attorneys can argue against the surveillance (even criminal suspects aren't accorded that privilege in warrant procedings).

          The choices I see are really to keep the FISA system, with or without such changes as Congress might think proper to make; to abolish it, but retain the secret surveillance capability subject to the President's sole supervision, which would be a reversion to status quo pre-1978 (and FISA was enacted in response to documented abuses); or to abolish it completely, and probably the intelligence agencies along with it.

          Do you see any other options?
          John L. Ries
          • Options? Certainly the FISC (also called the FISA Court) founded in 1978

            is a totally different judicial institution now than what it was when it was instituted 36 yrs ago. One could argue that changes to FISC brought about when the Patriot Act was enacted plus subsequent revisions to that Act and advances in technology since 1978 have almost created a new FISA Court bearing little resemblance to the original.

            Indeed, to paraphrase and quote Eric Lichtblau (of the NYTimes), It's powers have evolved and expanded to the point that it has been called "almost a parallel Supreme Court" However, "Unlike the Supreme Court, the FISA court hears from only one side in the case – the government – and its findings are almost never made public."

            A secret judicial body being compared to the Supreme Court in powers and scope that only hears the Government's position on any topic brought before it.

            How could the secret FISA Court be anything else but a rubber stamp for Government wishes and wants if it only hears the government's side of an issue?

            Options. Limit the FISA Court to it's original mandate and grant it only the powers to pursue that mandate. Or eliminate it.

            I don't agree with increasing it's bureaucracy, as David suggested, by increasing it's number of judges and appointing those judges for life. David didn't write that but like Supreme Court Judges - a life time appointment is a logical implication for a policy stating that their FISC responsibilities should be their "full time jobs".

            Certainly, I am in favor of drastically altering provisions of the current Patriot Act.

            However, if it was repealed completely, IMO, the benefits to the country would far outweigh it's negatives.

            I viewed the Patriot Act almost like an executive order instituting "Marshal Law" during a time of national crisis. Marshal Law suppresses individual rights only for a temporary period of time. The Patriot Act, with it's many "sunset" provisions implied that it's suppression of personal freedoms should be temporary as well.

            And, if both the FISA Court and the Patriot Act ceased to be, I would not expect that the any intelligence agencies that existed prior to 1978 would also cease their existance.

            The NSA would, however, cease to be the multi-national organization that it has become. (yeah, I know but when it works so seamlessly with it's other "Five Eyes" counterparts, the distinction that it is "only" a US agency ceases to have any validity.)
            kenosha77a
          • Almost all makes sense, but...

            ...how would increasing the number of FISC judges make the situation worse? It would still only be processing requests made by the intelligence agencies, who are already under presidential supervision (the court has zero initiative). Would not increasing the number of judges (remembering that petitions are heard by individual judges) give each judge more time to properly scrutinize requests? I agree that the the process should be adverserial, and I don't think David's recommendation that FISC judges serve full time is helpful (I think they should continue to be part time), but I fail to see how eliminating the court entirely (or reducing the number of judges) would help matters.

            if the President wants to assume tighter control of the intelligence agencies, there is nothing stopping him from doing so, as he appoints and dismisses their heads and he is the constitutional head of the federal civil service. FISA isn't part of that equation.
            John L. Ries
          • Re: Almost all makes sense, but..." Grin!

            Having a discussion with you reminds me of a scene from the movie, "Monty Python and the Holy Grail" where King Arthur comes across two peasants in the field discussing "post graduate political science issues".

            Here we are, two peasants discussing the merits of the present FISC system and the Patriot Act and thinking our suggestions would be taken seriously by "the King" or in this case, the hundred or so key individuals that operate the FISC system.

            Non-the-less, it is an honor to have them with you, John. And, they are important. Perhaps our comments will be read and, if nothing else, someone in a position to change the status quo might be influenced by them. That hope is, after all, the primary reason David issued his open letter to "Congress, the President, and the Supreme Court." (Nothing like swinging for the fences!)
            kenosha77a
          • Another question

            What should the rules be regarding cooperation between US intelligence services and their foreign counterparts? You don't like Five Eyes and maybe I don't either, but with what should it be replaced?
            John L. Ries
          • It's not that I don't like the "Five Eyes" organization or appreciate

            the job they perform.

            Their organization operates something like "NATO" does - except in secret (which is their nature, of course). It's just that I'm not sure exactly were the American component of the "Five Eyes" organization (the NSA?) truly places their loyalty or owes their allegiance to?
            kenosha77a
        • Re: Congressional debate

          As the US Constitution specifically allows each house of Congress to refrain from publishing such parts of their proceedings as they deem require secrecy and as both houses of Congress have since the early days of the Republic sometimes met behind closed doors to discuss secret matters (Senators are still required to keep the details of submitted treaties secret until/unless the President authorizes disclosure; though disclosure is now normally authorized), the rules are in place and simply have to be followed. The usual procedure is to clear the galleries and close the doors during the debate (or part of it) so secret matters can be discussed, and then to hold an open vote. Members who then disclose classified information are subject to both censure and expulsion, though the instances of disclosure appear to be rare, and prosecution if it happens outside of Congress (that too is authorized by the Constitution).

          So there really is no excuse for not debating changes to the PATRIOT Act.
          John L. Ries
        • Delegated authority

          Presidents delegate a good deal of their authority and have since George Washington was President, but I think delegation should be limited to duly appointed civil officers of the United States, to include the Vice President, but never to staffers or private citizens (there is no excuse for cabinet and subcabinet officers *ever* to take orders from staffers; department and independent agency heads should take orders from the President alone; their deputies should take orders only from the President or their bosses; this means that all but the most important independent agencies should probably placed under the appropriate departments). The President is Commander in Chief, but his orders pass through the Secretary of Defence before they reach the generals in the field, which is as it should be, as it's one way to prevent autocoups. The same situation should exist with regard to the intelligence agencies: all instruction should come through the chain of command; no exceptions.
          John L. Ries
        • Bravo

          Well written, Kenosha. It is really well past time for congress to take a look at the monster they created with the Patriot act.
          MC_z
          • Indeed it should

            Just remember that it was originally an Administration bill, which means that Former President Bush and Former Attorney General Ashcroft get to share the blame as well (as to their present day successors who requested renewal).
            John L. Ries
        • The author of record of the PATRIOT Act...

          ...I believe was Rep. James Sensenbrenner, who was the chairman of the House Judiciary Committee. But the bill was written at the request of then-AG John Ashcroft who publicly pushed for quick, unamended passage.

          Sen. Leahy, as chairman of the Senate Judiciary Committee, was probably its principal sponsor there.
          John L. Ries
    • Forgot to mention

      If we have intelligence agencies, we have secret bureaucracy by definition. It's not like the President, or even the agency heads are personally directing all of the employees. That was true pre-FISA (some of the Nixon tapes have interesting conversation on this subject) and is true now. Bureaucracy is inevitable in any large organization, public or private. The question are, how well is that bureaucracy organized and managed? and how well does it do it's job?
      John L. Ries
      • Given the three branches of government: Executive, Legislative and Judicial

        which branch would tolerate secrecy and which CAN NOT.

        IMO, secret bureaucratic agencies working in the Executive Branch are the only permissable ways secrecy should be employed in a democratic society.

        Should we allow laws to be enacted in secret?
        Should we have secret courts?
        kenosha77a
        • The question is...

          ..should courts be supervising secret agents in secret, or should spooks be responsible to the President alone, who should command them in secret as he sees fit (with nobody allowed to look over his shoulder)?

          I'm sorry, but I don't have quite that much trust in any one politician, much less a succession of them. One way or another, independent oversight is required.
          John L. Ries
          • It's not about trust. It's about responsibility.

            As far as I can tell, there has NEVER been an acceptable method to oversee the actions of intelligence agencies. HOW can there be? By their very secret nature, and how they operate, no one person or a committee could adequately oversee their operations.

            About the only way minimum oversight can work is thru budgetary review. ("Hey, we gave you so much money. What did you do with it? Oh, that money with to finance "Operation Up, Up and Away." Well, sounds good to us. Was that operation successful? Yup! Next budget review question.)

            So now, unless you can come up with a bullet proof oversight system for intelligence agencies that doesn't take into account the normal Congressional Budgetary Review Process, I suggest that increasing the FISA Court with additional oversight judges is doomed to failure - due in no small part to the fact that those judges become "part of the surveillance process".

            If that's the case, than if something goes wrong, the heads I want to roll are The President's and the head of the relevant intelligence agency. It's not about trust. It's about taking meaningful responsibility.
            kenosha77a
        • It looks like...

          ...that you are not proposing to curtail the surveillance capabilities of the intelligence agencies (except for repeal of the PATRIOT Act, which I lean toward as well), but only to eliminate/curtail judicial oversight thereof. I fail to understand why the latter is a problem. It's not like judges are acting on their own initiative.
          John L. Ries
          • Re: "it's not like judges are acting on their own initiative".

            IMO, regarding FISA Court judges, they are acting on their own initiative.

            That's the nature of their job. There is no appeal process (as far as I know). For example, when "a" FISA Court judge ruled that Verizon had to turn over their cellular phone metadata to the NSA, Verizon had to and due to a FISA Court ruling, they could NOT even discuss that action in public due to secrecy laws. As far as I know, they couldn't even appeal that ruling. (BTW, it was only due to Snowden's leaked info that the public learned about that issue.)

            I'm against the prospect of the FISA Court growing into a powerful "one way" secret court without an appeal process in place. Adding more FISC judges with sole "full time" responsibilites related to FICA issues would be a threat to an open, democratic society, IMO.
            kenosha77a