There are two groups specifically appointed with the task of ensuring that the government doesn't exceed its mandate in its push to fight terror activity and other crime. The first is the Foreign Intelligence Surveillance Court, a secret court comprised of judges with heavy background in prosecution. The second is a civilian panel which the president is meeting with for the first time today. Feel better?
Foreign Intelligence Surveillance Court (FISC)
We've outlined the work of the FISC before. Before the NSA or FBI can gather Americans' phone metadata or electronic communications from foreign terror suspects, the government must present its case to the FISC. (The FISC almost always approves them, albeit after a back-and-forth process involving what Robert Litt of the Director of National Intelligence Office this week called an initial "read copy" of the proposal.)
The FISC is comprised of eleven judges, all of whom also sit on other benches. FISC Presiding Judge Reggie Walton, for example, is a member of the D.C. District Court, nominated by George Bush. He, like all FISC judges, sits for a seven-year term. This year, as Reuters notes in its look at the body, the FISC has had 14 members, after some termed out and were replaced. Reuters also notes of the composition: "Twelve of the 14 judges who have served this year on the most secret court in America are Republicans and half are former prosecutors."
"Since FISA was enacted in 1978, we've had three chief justices, and they have all been conservative Republicans, so I think one can worry that there is insufficient diversity," said Stephen Vladeck, a law professor at American University's Washington College of Law.
The Federation of American Scientists, of all groups, maintains a list of the current members. They are:
|Reggie Walton (presiding)||D.C. District Court||May 2014|
|Rosemany Collyer||D.C. District Court||March 2020|
|Raymond Dearie||Eastern District, New York||July 2019|
|Claire Eagan||Northern District, Oklahoma||May 2019|
|Martin Feldman||Eastern District, Louisiana||May 2017|
|Thomas Hogan||D.C. District Court||May 2016|
|Mary McLaughlin||Eastern District, Pennsylvania||May 2015|
|Michael Mosman||Oregon||May 2020|
|Dennis Saylor||Massachussets||May 2018|
|Susan Webber Wright||Eastern District, Arkansas||May 2016|
|James Zagel||Northern District, Illinois||May 2015|
The cases for which the judges are known outside of the FISC are diverse and odd and often mundane. Walton sentenced Dick Cheney aide Scooter Libby to prison for leaking classified information. Feldman halted Obama's injunction against offshore drilling. McLaughlin allowed a school to keep selling "I Heart Boobies" bracelets. Webber Wright blocked a strict anti-abortion law in Arkansas — and was the judge who held President Clinton in contempt for lying about his relationship with Monica Lewinsky.
Reuters describes how it works when they transition to their FISC duties.
Every few months, the FISA judges set aside their regular, public cases, travel to Washington, and take the bench inside a secure, windowless courtroom at 333 Constitution Avenue. Prosecutors and federal agents appear to answer questions about warrants before individual judges, rather than a panel.
As for their responsibility to protect Americans' privacy in the government's push for more surveillance, the FISC is also the body that ruled that the agencies had, on "at least one occasion" violated the Fourth Amendment in its collection of data. The specifics of that occasion or occasions is still secret.
The Privacy and Civil Liberties Oversight Board
For the first time during his presidency, Obama will meet today with the members of the PCLOB, as it is inelegantly called. The body was established in the aftermath of the 9/11 Commission, specifically tasked with ensuring that intelligence reforms in the wake of that attack didn't infringe on civil liberties. The Congressional Research Service outlines the group's duties:
… to oversee adherence to presidential guidelines on information sharing that safeguard the privacy of individuals about whom information is shared, and adherence to guidelines on the executive’s continued use of powers that materially enhance security.
There are currently five members of the board.
|David Medine, chair||Consumer Financial Protection Bureau, US Securities and Exchange Commission, WilmerHale (via LinkedIn)|
|Rachel Brand||U.S. Chamber of Commerce, National Chamber Litigation Center (via LinkedIn)|
|Elisabeth Cook||former assistant attorney general at the Justice Department (via Politico)|
|Jim Dempsey||Center for Democracy and Technology|
|Judge Patricia Wald||Retired, Open Society Institute’s Criminal Justice Initiative, former member of the International Criminal Tribunal in The Hague|
As ABC News reports, the meeting with Obama today will not be public.
In an interview earlier this week with Charlie Rose, Obama first announced that he would meet with the board, saying, “what I want to do is to set up and structure a national conversation, not only about these two programs, but also the general problem of data, big data sets, because this is not going to be restricted to government entities.”
Obama also plans meetings in the coming weeks with “a range of stakeholders on the subject of protecting privacy in the digital era,” the administration official said.
Medine, for one, appears to be ready to press the president on privacy issues, according to a report in The Hill:
In an interview with the Associated Press, Medine said senior officials at the NSA, FBI, and Justice Department explained how some of the NSA programs functioned in a meeting with the five panelists Wednesday.
"Based on what we've learned so far, further questions are warranted," he told the wire service.
Your privacy isn't only in the hands of these sixteen people, of course. There are also the 535 members of Congress, the president, and the members of the intelligence agencies who are tasked with protecting your privacy. But, if you're concerned about lines being crossed, you might wish these 16 — and Medine in particular — the best of luck.
This article is from the archive of our partner The Wire.
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