Secretive Surveillance Court Questioned on Independence, Diversity

The secretive court getting new scrutiny in the wake of disclosures about government Internet and telephone data-gathering has counted 12 Republicans among its 14 judges this year, Reuters reports.

Yet judges of the Foreign Intelligence Surveillance Court “also have issued orders in public cases that belie their conservative, law-enforcement roots, sometimes ruling against the government in terrorism-related cases,” Reuters says in its intriguing portrait of the members of the Washington, D.C.-based court.

The article includes comments by experts who question the bench’s diversity and the direction of its evolution over 35 years. The judges are chosen from trial courts around the country by the chief justice of the United States.

“Since [the Foreign Intelligence Surveillance Act] 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,” Stephen Vladeck of American University’s Washington College of Law told Reuters.

Syracuse University College of Law professor William C. Banks, at an event held last month to mark the court’s 35th anniversary, said changes made by Congress to the FISA law in 2008 have “strained [the court’s] utility as an independent arbiter of lawful FISA surveillance.” It has evolved into an administrative body as opposed to a judicial one, he said.

Meanwhile, other coverage mentioning the court included these pieces: John Yoo in a Fox News blog, “Hiding behind judicial robes in the battle over national security;” Washington Post, “New documents reveal the bounds of NSA surveillance;” and USA Today, “Obama takes heat over ‘transparent’ FISA court.”

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