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

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.
Written by David Gewirtz, Senior Contributing Editor

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.

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