Judges of Secretive Court Attract Heightened Scrutiny

There’s no resolution in sight of the controversy over recent disclosures of sweeping government surveillance of Internet and phone data. But one certainty is this: the secretive federal court that is asked to approve extensive data-gathering is itself getting unusual, heightened scrutiny.

This weekend, the Washington Post weighed in with a front-page article entitled, “For secretive surveillance court, rare scrutiny in wake of [National Security Agency] leaks.” It reported that U.S. District Judge John Bates, a member of the Foreign Intelligence Surveillance Court, met with numerous senators earlier this month in a secure Washington meeting room at the Capitol, and was asked to discuss the court’s work.

The two-hour session with Judge Bates and two spy agency officials, the Post reported, “reflects a new and uncomfortable reality for the Foreign Intelligence Surveillance Court and its previously obscure members. Within the past month, lawmakers have begun to ask who the court’s judges are, what they do, why they have almost never declined a government surveillance request and why their work is so secretive.”

As part of the scrutiny, there is legislation seeking to shed sunlight on secret orders of the court, and there are requests for the Obama administration to make public summaries of the court’s opinions, at the least.

Contended former U.S. Judge Nancy Gertner of Massachusetts, an appointee of President Clinton, “The judges that are assigned to this court are judges that are not likely to rock the boat.” She added, “All of the structural pressures that keep a judge independent are missing there. It’s ­one-sided, secret, and the judges are chosen in a selection process by one man,” the U.S. Chief Justice.

The surveillance court’s presiding chief, Judge Reggie Walton, has disagreed vigorously with the court’s most outspoken critics. “The perception that the court is a rubber stamp is absolutely false,” he said.
“There is a rigorous review process of applications submitted by the executive branch, spearheaded initially by five judicial branch lawyers who are national security experts and then by the judges, to ensure that the court’s authorizations comport with what the applicable statutes authorize.”

At Slate, meanwhile, William Saletan wrote an essay entitled, “Going Courtless.” Democratic state Rep. Mike Stewart of Tennessee wrote in The Tennesseean, “Federal judges should oversee national security cases.”

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