The New York Times reports today on Chief Justice John Roberts' immense influence on the shape of the Foreign Intelligence Surveillance Court, the secretive body that approves surveillance wiretaps, but which has moved to broader interpretations of surveillance law and constitutional rights.
The article notes that 86 percent of the judges appointed by Roberts are Republican-nominated judges and about half come from the executive branch, with many former prosecutors in their number. He continues and enhances a record of Republican influence.
“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.
He'd spread appointment power around, rather than have the chief justice make them all.
Why worry?
At a public meeting this month, 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 blessing to continue secret surveillance programs that had originally circumvented the FISA process.
The article mentions some of the members of the FISA court, but not the two Arkansans directly connected.
Judge Susan Webber Wright, a Republican appointee, was appointed to a seven-year term on the 10-member court in May 2009.
Judge Morris S. "Buzz" Arnold, a retired court of appeals judge, was appointed last year to complete a term as presiding judge of the Foreign Intelligence Surveillance Court of Review, which considers appeals of FISA court rulings. He's served on that equally secretive court since 2008.