This post has been corrected.
You don’t have to think Edward Snowden is a hero, to be horrified by the latest revelations about the secret workings of the court that approves the president’s many requests for surveillance. Or at least you shouldn’t have to think that.
But revelations by the New York Times and Wall Street Journal in the last few days about the sweeping yet secret workings of the FISA court, appointed solely by Supreme Court Chief Justice John Roberts, have gotten far less attention than Snowden’s original revelations – and far less than they deserve. The man who just presided over a genteel gutting of the Voting Rights Act, who is laying the groundwork for doing away with affirmative action and who may have led his liberal colleagues to dramatically curtail the power of Congress to compel state action with his Obamacare ruling, has huge sway over our national security machinery. He has appointed all the sitting judges, and 10 of 11 are Republicans, with no confirmation or even oversight by Congress. Both of Roberts’ roles are hugely influential, and disturbing.
A few weeks ago Reuters reported the sweep of Roberts’ influence: He appoints all FISA judges, drawn from the federal bench, and right now 10 of 12 were originally appointed by Republican presidents. Over the last 12 years, they approved 20,909 surveillance and property search warrants and rejected only 10 government requests. Between 2007 and 2012, they approved 532 “business record” warrants – like the one revealed by Snowden directing Verizon to hand over metadata on all U.S. calls. None of those requests were rejected, but the judges ordered “substantial modifications” to 428 of them. But secrecy dictates that we don’t know how they were modified.
On Monday, Digby wrote about the anti-terror paranoia of the secret court’s former chief judge Royce Lamberth, who is retiring from the federal district court, as providing a window on the terror hysteria that allows such a fundamental civil liberties institution to be kept entirely secret. In a 2009 interview with the Washington Post, Lamberth, whose term on the secret court ended in 2002, broke down in tears as he described a secret briefing about a terrorist threat to Washington, D.C., that he received after 9/11. "My wife and friends live here," he said. Digby noted that Lamberth's wife and friends were far more likely to die in car or plane crashes than in terror attacks.
Digby’s piece reminded me of the idiosyncratic Texas judge's other big political distinction: The Texas Republican appointed to the federal bench by Ronald Reagan was one of the judges who enabled the political witch hunt against President Clinton.
In 2000 the Chicago Tribune called him “Clinton's judicial nemesis.” To kick off the Clinton years, Lamberth ruled that first lady Hillary Clinton’s healthcare reform task force broke the law by meeting in secret – which was then overturned by an appeals court. He fined health reform consultant Ira Magaziner almost $300,000 for not being sufficiently forthcoming about the makeup of the task force, which was also overturned on appeal. He gave Larry Klayman’s right-wing Judicial Watch his blessing to pursue specious lawsuits that let him depose Clinton administration figures from George Stephanopoulos to James Carville to fundraiser John Huang.
In 2000, he declared that Clinton had committed a crime by releasing private letters written by Kathleen Willey, who claimed he sexually harassed her – and an appeals court rebuked Lamberth. "It was inappropriate for the district court gratuitously to invoke sweeping pronouncements on alleged criminal activity that extended well beyond what was necessary to decide the matter at hand," the court wrote.
Lamberth also ruled that Obama’s funding for embryonic stem cell research was illegal, which was also overturned. But when it comes to surveillance, he’s been on Obama’s side: As a federal district court judge, Lamberth overruled a magistrate and approved Attorney General Eric Holder’s request to obtain the personal and professional email of Fox News’ James Rosen, without directly notifying Rosen, in connection with a State Department leaks scandal in 2010.
To be fair, Lamberth has been involved in good decisions, too, finding on behalf of Indian tribes against the Department of Interior under presidents of both parties (ironically, hiring a hacker to show that Interior was lying about maintaining secure Indian trust funds.) He also upheld McCain-Feingold campaign finance measures in the Citizens United case, before the Roberts court struck them down, and rejected birther queen Orly Taitz’s baseless lawsuits, accusing her of either “toying with the Court or displaying her own stupidity.”
Whether you admire or disdain Lamberth’s non-FISA decisions, at least there is transparency and judicial oversight. Whatever he was up to on the FISA court, we don’t know about it.
As the New York Times revealed, John Roberts presides over a court that is “regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny.” The Times called it “almost a parallel Supreme Court.” Using the legal principle known as the “special needs” doctrine, which once applied narrowly to issues of public safety – enabling the drug testing of railway workers, for instance – it created a terror-related exception to the Fourth Amendment’s requirement of a warrant for searches and seizures. The Wall Street Journal revealed that the FISA court had also vastly expanded the definition of the world “relevant,” as in "relevant to an authorized [foreign intelligence] investigation" to justify an equally vast expansion of surveillance on Americans.
And this “parallel Supreme Court” leans decidedly to the right. There have only been three chief justices since FISA was enacted in 1978, and all have been conservative Republicans, “so I think one can worry that there is insufficient diversity," Stephen Vladeck of American University's Washington College of Law told Reuters. Roberts certainly hasn’t advanced diversity. "The judges are hand-picked by someone who, through his votes on the Supreme Court, we have come to learn has a particular view on civil liberties and law enforcement," Penn Law professor Theodore Ruger said. "The way the FISA is set up, it gives him unchecked authority to put judges on the court who feel the same way he does.” As Elizabeth Goitein of the Brennan Center for Justice told Ezra Klein: “Like any other group that meets in secret behind closed doors with only one constituency appearing before them, they’re subject to capture and bias.”
Lamberth isn’t the only Republican-appointed FISA judge who’s shown a propensity to thwart Democrats in non-FISA work. Florida’s Roger Vinson struck down the Obama administration's healthcare law in 2011 (the Roberts court overruled him). Vinson signed the fateful Verizon order. John Bates of Washington, D.C., was a Whitewater prosecutor. Arkansas Judge Susan Webber Wright held Clinton in contempt of court for lying under oath about his relationship with Monica Lewinsky.
In all the recent controversy over the FISA court, Lamberth says only one thing bothers him: the intelligence community and Congress aren’t standing up for the court. "What I found that bothered me is the notion that the court was a rubber stamp because we're approving so much," the judge told NPR. And then he defended the court with a circular, Orwellian declaration: "We're approving it because it should be approved, because it's valid, because what the government's doing here is the kinds of things we should be doing."
An earlier version of this post stated that former FISA court chief judge Royce Lamberth was retiring from the court this year. He actually left the FISA court when his term ended in 2002; he is retiring from the U.S. Federal District Court of Washington D.C. this year. It also stated that Lamberth overruled other FISA court judges when he approved a warrant to secretly obtain Fox News's James Rosen's email; he approved Holder's request as a federal district judge and overruled a magistrate, who had approved the warrant but determined that Rosen must be notified. I regret the errors.