Secrecy News

Two New Judges Appointed to FISA Court

The Chief Justice of the United States has named two new judges to the eleven-member Foreign Intelligence Surveillance Court (FISC), the Court announced last week.

Chief Justice Roberts designated Judge James P. Jones of the Western District of Virginia and Judge Thomas B. Russell of the Western District of Kentucky to serve on the FISC beginning May 19, 2015. Judge Jones and Judge Russell were both nominated to the federal bench by President Bill Clinton. The new FISC appointees will replace Judge Mary A. McLaughlin and Judge James B. Zagel, who will rotate off the Court on May 18. The current membership of the FISA Court is listed here (and here).

The Foreign Intelligence Surveillance Court rules on applications for electronic surveillance and physical search (“and other investigative actions”) under the Foreign Intelligence Surveillance Act. In recent years, the Court has also secretly interpreted intelligence surveillance law in ways that were unexpected and counterintuitive, authorizing the collection of all domestic telephone metadata records.

The evolution of the Foreign Intelligence Surveillance Court was critically examined in a report last month from the Brennan Center for Justice.

Due to changes in law and technology, the FISA Court has “veer[ed] off course, departing from its traditional role of ensuring that the government has sufficient cause to intercept communications or obtain records in particular cases and instead authorizing broad surveillance programs,” wrote Liza Goitein and Faiza Patel of the Brennan Center.

“It is questionable whether the court’s new role comports with Article III of the Constitution, which mandates that courts must adjudicate concrete disputes rather than issuing advisory opinions on abstract questions. The constitutional infirmity is compounded by the fact that the court generally hears only from the government, while the people whose communications are intercepted have no meaningful opportunity to challenge the surveillance, even after the fact,” they wrote.

See What Went Wrong with the FISA Court, Brennan Center, March 18.

(Former Justice Department official Carrie Cordero took issue with some of the authors’ recommendations for changes to the Court on the Lawfare blog last week. Update: The authors replied here.)

The Congressional Research Service issued several reports last year on possible reforms to the FISA Court:

Reform of the Foreign Intelligence Surveillance Courts: A Brief Overview, March 31, 2014

Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes, August 26, 2014

Reform of the Foreign Intelligence Surveillance Court (FISC): Selection of Judges, May 5, 2014

Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate, March 21, 2014

Reform of the Foreign Intelligence Surveillance Courts: Disclosure of FISA Opinions, February 24, 2014