Setting the Record Straight about the Makeup of the FISA Court

I was saddened to see one of my favorite state-based blogs, Michigan blog Eclectablog, publish an incomplete and misleading attempt to connect voter suppression and corporate money to the NSA surveillance programs through Chief Justice Roberts. The author ("LOLGOP" - one of Twitter's best satirists), noted that Roberts, an architect of both kneecapping the Voting Rights Act and the Citizens United decision, now appoints all the members of the FISA court.
Guess who appoints every member of that court? Chief Justice John Roberts.

All 11 judges — 10 Republicans and 1 Democrat — were appointed by Roberts. And his choices to not require approval by Congress — or anyone.

This is how we ended up with a FISA court that approves 99.9% of the government’s spying requests. Only 10 out of 20,909 were rejected. Another 1,000 of the approved requests required modification. 26 were withdrawn by the government.
Except that the approval rate noted spans the time between 2001 and 2012, a lot longer than Roberts has been Chief Justice and has been appointing the FISA court judges. In fact, the court's rate of approval of the government's requests had never dipped below 99% (with most years the court approving 100% of the government's requests) since 1979 - never, that is, until 2009, since which year, the request-approval rate has hovered between 95 and 96 percent each year. What was so special in 2009? Congress amended FISA in 2008 to provide for tighter protections for individuals. I have no love loss for Roberts, who is a corporate conservative, but if the court's high approval rate of the government's request is a problem, it's a problem that has always existed and has little to do with John Roberts.

It is also not entirely accurate to say or suggest that the appointments to the FISA court are completely unilateral. While the picks are made by the Chief Justice, he cannot just pick anyone:
Judges serve for staggered, non-renewable terms of no more than seven years [...] The eleven judges must be drawn from at least seven judicial circuits, and no fewer than three are to reside within twenty miles of the District of Columbia.
In other words, each judge on the FISA court is also a duly appointed federal judge, and at the time they became federal district court judges, they were appointed by a president and confirmed by the Senate. And unlike other federal courts, judges on the FISA court do not serve tenured, life terms. They are limited to serving only one term of no more than seven years.

The Foreign Intelligence Surveillance Court, its classified nature, and the fact that the Chief Justice of the Supreme Court appoints its members without additional checks have long been subject to proper civil libertarian criticism. But the rekindled attacks in the light of the recently leaked NSA programs have often sought to scare rather than inform. The article I referenced at the beginning of this piece is but an example of all the misinformation (or incomplete detail) that is out there about the structure of FISA Court.

National security advocates and civil libertarians have clashed on whether a "secret" court is constitutional at all, and many have criticized the court for being a "rubber stamp" for requests from the FBI and intelligence agencies, given that it almost always grants the government's petitions. These are all fair critics. It is also entirely fair to criticize the court - or perhaps Congress, for instituting its makeup in this way - for the fact as long as someone is a federal judge, all they need is an appointment from the head of their branch of government (i.e. the Chief Justice of the Supreme Court) to sit on the court. My sentiments on the matter are perhaps best summarized by
I’m not convinced that Roberts is packing the court with patsies for the national surveillance state. But it is anomalous that all 11 members of this important court are appointed by the chief justice, albeit from a pool of  judges nominated by the president and confirmed by the Senate for ordinary federal trial courts.

It would be better if its members were chosen specifically for this assignment by the president and confirmed by the Senate. That’s the case with another specialized court, the U.S. Court of Appeals for the Federal Circuit, which hears cases involving patents, intellectual property and international trade.

Presidential nomination and Senate confirmation of judges for the FISA court would allow senators to question nominees about their view of the 4th Amendment and constitutional privacy rights.
This is not only an entirely reasonable position, it is a position I am in complete agreement with.

The point of this article is not to defend the make-up of the FISA court, nor to defend Chief Justice Roberts. It is, however, to inform my readers the full nature of the court's appointments and makeups. I do not believe that we can have an honest debate about the court - especially its reform - if we focus on one man and blame him for a decades long tradition of the FISA court. We cannot have an honest debate about the process of appointments if we aren't fully informed about the entirety of the process.

Congress did not design the court's safeguards the way I and many others would like, but it did design some safeguards (such as the judges must already be federal judges and that they can serve no more than one seven-year term). The court's record of overwhelmingly approving the government's national security requests did not suddenly come out of the blue in the years since John Roberts took office, or even in the years since 9/11. These are facts - facts we must acknowledge and understand. Only then can we have an open and honest debate on the structure of the FISA Court based on the facts rather than charged by the emotions.