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Russell Wheeler: The Changing Composition of the Foreign Intelligence Surveillance Court and What If Anything To Do About It (Lawfare Research Paper Series)

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Wednesday, June 4, 2014 at 4:11 PM

The question of the composition of the FISA Court—politically, demographically, and in terms of professional background—has arisen periodically throughout the last year. It has given rise to news coverage, recommendations by the president’s review group, legislative proposals, and defensiveness on the part of the judiciary. I asked my longtime Brookings colleague Russell Wheeler, an expert on the federal judiciary, to take a dispassionate look at the numbers and the various proposals for changes to the court’s designation system. The result is the latest installment of the Lawfare Research Paper Series: An authoritative study of the matter that will, I suspect, arm both proponents and opponents of changing the status quo with new arguments. Entitled “The Changing Composition of the Foreign Intelligence Surveillance Court and What If Anything To Do About It,” the paper adds a great deal of data to the conversation and, in addition, a sober and serious analysis of that data and what it does and does not mean.

Here’s the introduction:

The Foreign Intelligence Surveillance Court (FISC) acts on government applications to undertake national security-related investigations, principally domestic electronic surveillance. The now-eleven-member FISC has been the object of debate about the costs and benefits of its largely non-adversary proceedings and its comparative secrecy. There has also been controversy over whether the three chief justices in office since the FISC’s 1978 creation (Warren E. Burger, William H. Rehnquist, and John G. Roberts, Jr.) have designated FISC members, from among sitting district court judges, who are disproportionately Republican appointees or former prosecutors and debate over the implications of any such disproportions. The three-member Foreign Intelligence Surveillance Court of Review (FISCR) hears appeals from denied applications, but that court has been largely inactive because the FISC grants almost all final applications—a somewhat imprecise statement that overlooks such twists as applications the government withdraws in the face of likely denials and applications it modifies at the FISC’s suggestion before resubmitting.

The FISC’s designation regime has gained attention since last summer, when Ezra Klein, Charlie Savage and others noted the heavy preponderance of Republican appointees among Chief Justice Roberts’s FISC designees, and legislators introduced several bills to change the designation process. In May, 2014, I counted 18 FISC-related bills pending in Congress, five of which would reassign the designation responsibility to various configurations of the president and Senate, the chief justice and other justices, the Congressional
leadership, and the chief circuit judges.

Those proposing change claim that the FISC has been overloaded with judges who, as Republican appointees and former prosecutors, may be less likely than others to question surveillance requests rigorously, and more likely to stress national security over privacy when the court, as Representative Adam Schiff put it, “oversee[s] the constitutionality and scope of the programs.” Schiff said in July 2013 that “10 of the 11 judges currently serving on the FISC were appointed to the federal bench by Presidents from one political party.” (The division is now nine of 11.) Senator Richard Blumenthal pointed to the preponderance of Republican appointees, and noted that “half of … Chief Justice [Roberts’s] choices have been former executive branch officials.” He called for a FISC that “is geographically and ideologically diverse and better reflects the full diversity of perspectives on questions of national security, privacy, and liberty.”

The December 2013 report of the President’s Review Group on Intelligence and Communications Technologies, noting the heavy majority of Republican appointees, said that “Republican-appointed and Democratic appointed judges sometimes have divergent views, including on issues involving privacy, civil liberties, and claims of national security.” Implicit in these comments is another consideration: if the FISC is
dominated by appointees of one political party, or by former prosecutors, it may appear ideologically oriented even if it is not, and optics matter to the FISC’s legitimacy during debates over national security and privacy.

Former FISC presiding judge John D. Bates (D.C.), who is now director of the Administrative Office of the U.S. Courts (and the chief justice’s designated liaison for the judiciary on FISA matters), responded to various FISC-related recommendations. As to the designation process, he cautioned that proposals involving “more persons” and “likely to introduce political factors” could prolong FISC vacancies, risk leaking embarrassing information from prospective designees’ security background investigations, and ignores the
chief justice’s “unique role in the Judicial Branch.”

In this paper, I look at the patterns of designations to the FISC since the 1978 passage of the Foreign Intelligence Surveillance Act (FISA). I have confined this analysis to the FISC, since the FISCR sees so few actual cases. This examination reveals the following:

  • The party of the judges’ appointing presidents, and the judges’ prosecutorial experience, merit examination even if links between these variables and FISC decisions is speculative at best.
  • Circuit representation on the FISC has been generally balanced apart from the statutory preference for judges from the District of Columbia Circuit.
  • The proportion of FISC judges who are white males has been declining; who are Republican appointees has been increasing; who are former prosecutors has declined slightly; and who are former longtime prosecutors has increased slightly.
  • FISC designees, compared to larger groups of presumptively FISC eligible judges, have included proportionately more white males, Republican appointees, and former prosecutors.
  • Republican-appointees have been in the majority on 32 of the 34 different iterations of FISC membership created by chief justices’ designations. Former prosecutors have been the majority on 28, but former long-time prosecutors have had a much smaller presence.

I conclude the paper with a brief assessment of the pros and cons of changing the designation process and of the major alternatives on the legislative table.

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