Did Justice Roberts Reshape the FISA Court?

07.29.13 | 4 min read | Text by Steven Aftergood

There have been 71 federal judges who have served on the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review from 1979 until the present.  A complete list of the Court’s membership, prepared by the Court’s Administrative staff, was obtained by the New York Times.  Although this comprehensive listing was not formally secret, neither had it been previously been made publicly available.  A copy is posted here.

Under the Foreign Intelligence Surveillance Act, appointments to the Court are made by the Chief Justice of the United States. An analysis of the Court’s membership by the New York Times found that during the tenure of Chief Justice John G. Roberts Jr., a higher number of Republican judges had been appointed than in the past — 10 of the current 11 members, compared to 66% under previous Chief Justices — as well as a higher number of judges who had once worked for the federal government — 50% versus 39% in the past. See “Roberts’s Picks Reshaping Secret Surveillance Court” by Charlie Savage, New York Times, July 25.

The premise of the story is that Chief Justice Roberts’s selection pattern is not merely a statistical curiosity but that it has altered the performance of the court, or “reshaped” it, to favor the executive branch.  The Times does not directly embrace this view, but attributes it to “critics,” including Sen. Richard Blumenthal (D-CT), who is proposing legislation to change the way the Court’s members are appointed.

“Viewing this data, people with responsibility for national security ought to be very concerned about the impression and appearance, if not the reality, of bias — for favoring the executive branch in its applications for warrants and other action,” Senator Blumenthal told the Times.

But the claim that Chief Justice Roberts’s appointments have “reshaped” the Court to favor the executive branch in applications for warrants does not withstand a moment’s scrutiny.  That’s because the Court’s approval rate has always hovered near 100% — both before and after the Roberts era. No discernable reshaping has occurred.

In fact, based on the available data, one could perhaps say that the Court has exercised greater scrutiny lately than it once did. In 1979, in the Court’s very first year of operation, all applications for surveillance were approved without modification.  In 2012, the most recent year, no applications were denied outright, but 40 of them were modified by the Court.

A more substantial concern is that the function of the FISA Court has expanded in the past decade beyond the routine consideration of surveillance applications, and now extends to the secret interpretation of government authorities under the law.  This is indeed an area when ideological predispositions could manifest themselves in reshaping the applicable law.

Whether that has actually happened is impossible to ascertain since most of the Court’s opinions, including those that the Court itself has deemed “significant legal interpretations,” remain classified and unavailable.

But the notion that the behavior of FISA Court judges can be reliably inferred from the political party of the President that appointed them, or from their past service in the executive branch, is cynical and vaguely insulting.

The Times names Judge Reggie B. Walton as one of the current Court members appointed by Justice Roberts who previously served in the executive branch (working “on drug and crime issues for the White House”) and who is therefore purportedly more likely to defer to the interests of the executive.

But the suggestion that Judge Walton has been unduly deferential to executive authority is not borne out by his record.  Years ago I filed a Freedom of Information Act lawsuit against the National Reconnaissance Office that was heard by Judge Walton. I was seeking agency budget information that the NRO refused to provide, withholding it under an intelligence agency exemption for “operational files.”  It was a dispute between a multi-billion dollar agency and an individual plaintiff (me) who was not even represented by an attorney.  This was a perfect opportunity for a judge to display deference to an executive branch intelligence agency, particularly since there was no conceivable ideological or political incentive for the court to rule in my favor. But instead, Judge Walton denied the NRO’s motion to dismiss the case, and he granted my motion to compel disclosure of the requested budget information. It was not the outcome that a cynic would have predicted.

My experience with Judge Walton may be exceptional.  Or maybe not.  One of the academic studies linked from the Times article to support the proposition that judges appointed by Republicans are more likely to rule in favor of the government actually reported that “even in the most controversial cases, Republican and Democratic appointees agree more than they disagree.”

The practical lesson is that to focus on the membership of the FISA Court is probably not the best way to regulate the Court’s conduct or to affect its performance.  Assuming that there is only a limited amount of political energy available for addressing FISA policy, efforts to reform the Court would more profitably be directed toward declassification of Court decisions, and reconsideration of the statutory framework that the Court operates within.