Foreign Intelligence Surveillance Act court judge selection is completely, 100 percent internally managed, and Republican Chief Justice of the United States Supreme Court John Roberts controls the judge selection. Roberts’ track record and current lack of meaningful results could indicate that he is doing poorly.
Since Supreme Court justices are on the bench until they either retire or die, Roberts will hold his position overseeing the judge selection until he reaches those terms. Privacy advocates find it off-putting that Roberts is under no outside oversight in the jury selection process. His is the only and final word on that decision. However, some have questioned Roberts’ genuine interest in the responsibility.
University of Mississippi School of Law professor Tom Clancy claims, after studying Roberts’ stance on surveillance issues, that he exudes “little interest” and tends to sidestep issues concerning government surveillance. When something is brought to the high court, he pins other judges with the job of making the court opinion. Clancy blames Roberts’ inaction on a number of things like weak leadership compared to his predecessor, William Rehnquist, and his thin background in Fourth Amendment issues. The Supreme Court’s current lack of meaningful interface with Fourth Amendment cases somewhat reflects that of the FISA courts.
Over 20,000 surveillance and property search warrants were granted from 2001 to 2012, according to Reuters. That number towers over warrant denials, which total only 10. Such a lopsided ratio seems to indicate a lack of proper due care given to each incoming case. Again, should the FISA court have some sort of authoritative oversight, judges could be more inclined to give each case a more thorough examination, rather than convey them through an assembly line-style rubber stamping.
Currently, there are 11 FISA judges, all of them chosen by Roberts and all but one of the 11 judges are Republican. This intense partisanship has caused some concern among critics. Cass Sunstein, a Harvard Law School professor, indicates that when judges of identical political affiliations collaborate, they become “more ideologically rigid” as opposed to the moderation exhibited when there is a balanced number of judges with differing views.
The lack of leadership and proper background coupled with partisan favoritism hardly make Roberts the ideal man for the position and responsibility that he’s been granted. The Fourth Amendment is one of the most treasured rights among Americans, but the FISA court carelessly pushes its opinions through to surveillance organizations. Such carelessness undermines the rights of citizens and downplays the immense responsibility that the judges possess.
Joshua de Leon is a writer and researcher with Ring of Ring.