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

My Take on Snowden’s Revelations

data scanningEarlier this month, I was interviewed by KNBC’s Scott McGrew regarding Snowden’s revelations about NSA spying. The clip is eight and a half minutes long, and here are some of the main points I made:

A lot of what are now seen as NSA’s abuses were authorized by the Patriot Act, which was passed and renewed by large margins by our elected representatives. When it was first passed in October 2001,  only one senator, Russ Feingold, voted against it. How did we reward him? By kicking him out of the Senate  in the 2010 election . If there’s someone to blame, perhaps we should look in the mirror.

Right after 9/11 I was shaken enough to say that I wanted my government to be more intrusive in my life, and I got what I asked for. In hindsight, I over-reacted. But, given that we now have the Patriot Act, we need much better oversight. For example, it’s dangerous that all FISA court judges are appointed by just one person: Chief Justice John Roberts.

As a nation, we want absolute privacy against government intrusion, absolute security against  terrorists, and the right to use our military anytime and anywhere we think it is appropriate. We need to recognize that there’s a tradeoff, and we can’t have all three, at least at the level we’ve been demanding them.

Our civil liberties have become collateral damage to our many wars. If we want want less domestic surveillance and improved personal security against terrorism, we’re going to have to be less intrusive in the world. We’re going to have to kill fewer people, who then might want to come and kill us.

If we become less militarily adventuresome, it would reduce the threat posed by nuclear weapons in  two ways. First, terrorists would be less interested in doing us harm, including via nuclear terrorism. Second, our toppling governments as often as we have feeds dangerous paranoia in Russia and China, which increases the risk of a nuclear confrontation. A prominent Russian international relations expert made a reasonable case that his nation should be fearful of us. Here’s how the Washington Post covered his remarks:

I’m skeptical that anyone outside of the Kremlin could diagnose its view of American foreign policy with real certainty, but Fyodor Lukyanov is probably about as close as an outside observer can get. …

According to Lukyanov’s latest article in Al-Monitor, an assessment of the lessons that he believes Russia drew from the Iraq war that began 10 years ago, President Vladimir Putin and his government are convinced that U.S. foreign policy is basically running on madness at this point. … “Everything that’s happened since — including flirting with Islamists during the Arab Spring, U.S. policies in Libya and its current policies in Syria — serve as evidence of strategic insanity that has taken over the last remaining superpower.” …

Moscow is certain that if continued crushing of secular authoritarian regimes is allowed because America and the West support “democracy,” it will lead to such destabilization that will overwhelm all, including Russia. [emphasis added]

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Martin Hellman is a professor at Stanford University, best known for the invention of public key cryptography — the technology that protects your credit card. But, for almost 30 years, his primary interest has been how fallible human beings can survive possessing nuclear weapons, where even one mistake could be catastrophic.

The post My Take on Snowden’s Revelations appears on ScienceWonk, FAS’s blog for opinions from guest experts and leaders.