There are 11 FISA Judges appointed for 7 year terms. All appointed by Justice Roberts.

[cali]

I know. I know. They're just protecting our freedoms and keeping us safe.

<snip>

The 11 FISA judges, chosen from throughout the federal bench for seven-year terms, are all appointed by the chief justice. In fact, every FISA judge currently serving was appointed by Roberts, who will continue making such appointments until he retires or dies. FISA judges don’t need confirmation — by Congress or anyone else.

No other part of U.S. law works this way. The chief justice can’t choose the judges who rule on health law, or preside over labor cases, or decide software patents. But when it comes to surveillance, the composition of the bench is entirely in his hands, and, as a result, so is the extent to which the National Security Agency and the Federal Bureau of Investigation can spy on citizens.

“It really is up to these FISA judges to decide what the law means and what the NSA and FBI gets to do,” said Julian Sanchez, a privacy scholar at the Cato Institute. “So Roberts is single-handedly choosing the people who get to decide how much surveillance we’re subject to.”

<snip>

To the degree Roberts’s views can be divined, he leans toward giving the government the authority it says it needs. “He’s been very state-oriented,” Clancy said. “He’s done very little writing in the area, but to the extent he has, almost without exception, he’s come down in favor of the police.”

Roberts’s nominations to the FISA court are almost exclusively Republican. One of his first appointees, for instance, was Federal District Judge Roger Vinson of Florida, who not only struck down the Affordable Care Act’s individual mandate but the rest of the law, too. (The Supreme Court disagreed.) Vinson’s term expired in May, but the partisan tilt on the court continues: Only one of the 11 members is a Democrat.

<snip>

http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/05/did-you-know-john-roberts-is-also-chief-justice-of-the-nsas-surveillance-state/

[diabeticman]

1. Ben Franklin said it best: A people that give up Freedom for security deserve neither freedom or

security and well we see how well all these Post 9/11 "Protecting acts" seem to be PROTECTINGus out of all the constitution gave us for the most part.

[riqster]

2. VERY interesting!

Thanks for the post.

[Kahuna]

3. Elections have consequences. That is all. nt

[cali]

4. Yes they do. As much as I disagree with many of President Obama's policies

I'm grateful he's the one making federal bench and SCOTUS appointments, not John McCain or Mitt Romney or heaven forbid, Sarah Palin.

[Igel]

5. This is refresher info.

It was known widely 10 years ago--not the "Roberts" part, but that FISA court judges are already Federally appointed and confirmed judges that are selected to handle all FISA cases.

So the President and Senate already weigh in on their qualifications as judges.

The rationale is also fairly simple. Any judge can hear any case, in principle. But when it comes to matters of national security, there are other factors at play.

Judges have a certain knowledge of the law, but also rely on the attorneys for the two sides they're hearing to present the relevant law to them. The statutes. The cases, providing how other judges have interpreted the law. And the attorney's intepretation of the law and arguments supporting that interpretation as it relates to the facts at hand. Then the judge decides between what s/he hears using what s/he brings to the bench. That's why they hear arguments for both sides. So, two sides, and the attorneys are, to a large extent, responsible for making their cases.

Judges also tend to have fairly open-ended timelines. Very seldom does something have to be decided in the next week. If it does, there are rules and procedures and the judge can issue an injunction to stop something. That injunction may involve preventing somebody else from stopping something, so it often sounds like the judge has an injunction ordering somebody to take positive steps. Not so much.

Once a case is decided, the court is usually done with the matter. If there's something that needs to be brought to its attention, then it's up to the litigants. In some cases--monitoring consent decrees, for instance--the court doesn't relinquish control. On the other hand, that usually is when the court has assumed jurisdiction and assumes more than a bit of ill-will on the part of the defendant.

Courts are typically open to the public, except as needed for national security or for the health and well-being of the defendant. (Or, I guess, in exceptional cases, the plaintiff.)

Judges can recuse themselves. And if you don't like their decision, you can file to have the venue changed or the judge removed from the case. This is a nice stalling tactic, but also enables judge-shopping. Typically the defendant has a better chance of winning this kind of argument.

In the FISA court all of this is turned on its head.

There aren't two sides. There's one side. The US government. The "defendant" has no representation, no attorney.

It's not like the US attorney has to make clear all the relevant law and precedents. The judges are to master this and while there may be points of dispute, the judges are to be experts of the relevant law. The attorney really just has to answer questions of fact.

The FISA court continues to monitor for compliance and requests reports. In this, the court is acting on behalf of the defendant. Rather like a probate court monitors the care and well-being of the protected people under its jurisdiction.

The cases usually have to be decided quickly. There is a short-range timeline. You don't want to have to worry about scheduling a court appearance, arraignments, etc. The US attorney says, "I have a case" and within a few days the court's been appointed, seen the briefs, and if necessary is hearing arguments. The judges are on notice that their attention might be needed at any time. Recusal? The defendant can't defend his rights. Somebody else has to do that.

The FISA court is private. You don't get their opinions published, by and large.

The FISA court judges aren't just judges. They also have security clearances. As we've seen with Snowden, any security clearance check might be insufficient. Every person with a security clearance is another person who could decide to not just be judge, but also jury and executioner.


And lest anybody want to have the Senate or Executive oversee the FISA court, there's that little matter of swearing to defend and uphold the Constitution standing in the way of everybody who could actually try to impose that kind of oversight. Assuming, of course, when they take the oath they're not already planning to ignore it, intentional oath-breakers.

The FISA court is a special beast. Dang that archconservative Jimmy Carter for establishing it, and that neo-Nazi Rehnquist for making appointments to it! (/sarcasm off)