The secret court that determines the boundaries (such as they are) for NSA surveillance has gotten progressively less secret over the past few months, thanks to Edward Snowden. New data about the historic composition of the court seems to suggest that more of its judges now have prosecutorial backgrounds and were Republican appointees. Put your partisanship down. Existing data and leaked rulings suggest the difference this made was at best subtle.
That new data appeared in a front-page article in The New York Times on Friday. It addresses the role played by Supreme Court Chief Justice John Roberts in making appointments to the court, which is formally known as the Foreign Intelligence Surveillance Act (or FISA) Court. The name stems from the law that gives it its authority, the Foreign Intelligence Surveillance Act, signed into law in 1978. The court came into being the next year, with appointees determined by then-Chief Justice Warren Burger.
While Roberts' role in appointing judges to sit on the FISA Court has been documented before — most notably by the Washington Post earlier this month — it had not previously been possible to compare Roberts' appointees with his predecessors. The Times got a full list of appointees over time, most of whom come from district appeals courts. The paper's Charlie Savage summarizes:
Though the two previous chief justices, Warren E. Burger and William H. Rehnquist, were conservatives like Chief Justice Roberts, their assignments to the surveillance court were more ideologically diverse, according to an analysis by The New York Times of a list of every judge who has served on the court since it was established in 1978.
According to the analysis, 66 percent of their selections were Republican appointees, and 39 percent once worked for the executive branch.
Our own version of The Times' graph of those appointees is below. Each Chief Justice who has appointed FISA Court judges is below. The timing is important, so it's worth breaking out:
- Warren Burger: began appointing judges in 1979
- William Rehnquist: began in 1986
- John Roberts: began in 2005
As is hopefully obvious, the distinction between Roberts and his predecessors is subtle. He has appointed a higher percentage of judges who have experience in the executive branch (mostly as prosecutors) and who were themselves appointed to the bench by other Republicans. This, Savage argues, is important.
While the positions taken by individual judges on the court are classified, academic studies have shown that judges appointed by Republicans since Reagan have been more likely than their colleagues to rule in favor of the government in non-FISA cases over people claiming civil liberties violations. Even more important, according to some critics of the court, is the court’s increasing proportion of judges who have a background in the executive branch.
The "academic study" linked is to a 2004 report that broadly suggests George W. Bush appointees to all benches were more conservative than the norm. The FISA Court is not mentioned.
But the data itself suggests that concerns about an increasingly conservative set of appointees — which, again, is subtle! — are overblown. Using data compiled by the Electronic Privacy Information Center, using reports from the FISA Court to Congress on its decision-making, here's how the FISA Court has ruled on government-proposed warrants under each Chief Justice.
It's hard to tell, but the percentage of warrant applications rejected during the years Roberts was appointing judges actually increased. Barely, mind you, and Roberts' FISA Courts have been presented with far, far more applications than previous courts.
You may be thinking: Well, if a bench has a majority of conservative judges, it can overrule the non-conservative minority. Except that isn't how the FISA Court works. As Reuters reported earlier this year, each warrant is considered by one judge at a time. Given the propensity with which the warrants are approved, it's obvious that the judge's background as a prosecutor or political predilection makes no difference whatsoever in the decisions he or she makes.
Where the point is more valuable is in considering the opinions the bench has released. Savage makes this point:
[I]ncreasingly in recent years, the court has produced lengthy rulings interpreting the meaning of surveillance laws and constitutional rights based on procedures devised not for complex legal analysis but for up-or-down approvals of secret wiretap applications. The rulings are classified and based on theories submitted by the Justice Department without the participation of any lawyers offering contrary arguments or appealing a ruling if the government wins.
Among those opinions — which are then used in consideration of those warrant applications — were decisions that apparently loosened the definition of "relevant" used to determine when information was important for a criminal case. This is by no means insignificant — but it's also not clear which judges were on the FISA Court when the decision was made. The Wall Street Journal's original report puts the timeframe as "starting in the mid-2000s" — when the FISA Court would have been mostly Rehnquist appointees. (Each judge serves a seven-year term, so even after Roberts was named Chief Justice, many of Rehnquist's appointments were still in place.)
What's more, the FISA Court released an opinion that was a strong rebuke of the NSA's activity after 2008. In a letter to Senator Ron Wyden of Oregon last year, the office of the Director of National Intelligence admitted that the FISA Court had ruled that the NSA's intelligence-gathering operations had, at some point, violated the Fourth Amendment. That ruling, which is still classified, has become a focal point for civil liberties groups as one of the few indicators that the NSA overstepped its authority. And it came well after John Roberts started appointing his slightly-more-conservative judges.
Learning more about the composition of the FISA Court is an important development from the Snowden leaks — just as is learning about the surveillance that court authorizes. But critique of Roberts' appointees as somehow exceptional does not appear to be warranted. The FISA Court has always been deferential to the government. That's the real problem.