Intel Surveillance Court Gets Two New Judges

05.23.08 | 2 min read | Text by Steven Aftergood

Two new judges were named to the Foreign Intelligence Surveillance Court this week, Secrecy News has learned, one a Clinton appointee and one a Reagan appointee.

Judge Mary A. McLaughlin of the Eastern District of Pennsylvania and Judge James B. Zagel of the Northern District of Illinois were appointed to seven year terms on the secret court by the Chief Justice to replace Judge James G. Carr and Judge Nathaniel M. Gorton, whose terms expired on May 18.

The Foreign Intelligence Surveillance Court is responsible for reviewing and approving government applications under the Foreign Intelligence Surveillance Act for domestic electronic surveillance and physical search of suspected foreign intelligence agents or terrorists.

But it does more than that. The Court also reinterprets the terms of the Act in an undisclosed fashion, producing in effect a body of “secret law,” a matter discussed at an April 30 hearing of the Senate Judiciary Committee.

“The FISC has in fact issued… legally significant decisions that remain classified and have not been released to the public,” observed Judge John D. Bates, a member of the FIS Court, when he denied (pdf) an ACLU motion for disclosure of portions of those decisions last December.

The appointment of new judges to the FIS Court assumes particular importance today because of a proposal pending in Congress that would refer existing lawsuits alleging illegal warrantless surveillance to the secret FIS Court in what would likely be a severely constrained adjudicative process. The proposal is being considered as an alternative to granting outright immunity to telephone companies that allegedly cooperated with the President’s surveillance program.

Judge Mary A. McLaughlin was appointed to the bench in 2000 by President Clinton. She was formerly an Assistant U.S. Attorney in the District of Columbia, and a special counsel to the Senate Judiciary Subcommittee on terrorism during the Ruby Ridge hearings in 1995.

Judge James B. Zagel was appointed in 1987 by President Reagan. Judge Zagel is “an intelligent, tough-minded jurist,” said the Chicago Council of Lawyers, a public interest association, in a 1991 evaluation. However, “some lawyers are concerned that he will bring a political agenda to bear in certain classes of cases.”

The new appointments were confirmed for Secrecy News today by Sheldon L. Snook of the administrative office at the D.C. District Court.

A new appointment to the Foreign Intelligence Surveillance Court of Review, an appeals court, has not yet been formally announced, he said. But the Providence Journal (RI) reported on April 14 that Judge Morris Sheppard Arnold of the 8th District had been named to the Review Court.

An updated roster of the membership of the Foreign Intelligence Surveillance Court is here.

“During calendar year 2007, the Government made 2,371 applications to the Foreign Intelligence Surveillance Court for authority to conduct electronic surveillance and physical search for foreign intelligence purposes,” the Justice Department told Congress in the latest annual report on FISA activity (pdf).

See all publications
Nuclear Weapons
New Voices on Nuclear Weapons Fellowship: Creative Perspectives on Rethinking Nuclear Deterrence 

To empower new voices to start their career in nuclear weapons studies, the Federation of American Scientists launched the New Voices on Nuclear Weapons Fellowship. Here’s what our inaugural cohort accomplished.

11.28.23 | 3 min read
read more
Science Policy
Expected Utility Forecasting for Science Funding

Common frameworks for evaluating proposals leave this utility function implicit, often evaluating aspects of risk, uncertainty, and potential value independently and qualitatively.

11.20.23 | 11 min read
read more
Nuclear Weapons
Nuclear Notebook: Nuclear Weapons Sharing, 2023

The FAS Nuclear Notebook is one of the most widely sourced reference materials worldwide for reliable information about the status of nuclear weapons and has been published in the Bulletin of the Atomic Scientists since 1987. The Nuclear Notebook is researched and written by the staff of the Federation of American Scientists’ Nuclear Information Project: Director Hans […]

11.17.23 | 1 min read
read more
Social Innovation
Community School Approach Reaches High of 60%, Reports Latest Pulse Panel

According to the National Center for Education Statistics’ August 2023 pulse panel, 60% of public schools were utilizing a “community school” or “wraparound services model” at the start of this school year—up from 45% last year.

11.17.23 | 4 min read
read more