Editorial: Foreign Intelligence Surveillance Court appointment process needs fixing
Published: Friday, October 11, 2013
Updated: Friday, October 11, 2013 01:10
Little known before this summer, the Foreign Intelligence Surveillance Court is an extremely powerful institution. Their primary role is to provide so-called judicial oversight regarding U.S. wiretapping programs, such as the one revealed in June that lets the National Security Agency spy on any American even if they have not been accused of a crime. Although their job is supposedly to provide a check on the executive branch and ensure the government does not go overboard, data indicates they have rejected less than one percent of the government’s requests.
One inherent institutional problem is the selection of judges, namely that one person appoints all of them. As the law currently stands, U.S. Supreme Court Chief Justice John Roberts appoints whomever he wants. To appoint Supreme Court justices, the president selects and the Senate must vote to approve, yet here neither the president nor the Senate have a say. For Supreme Court decisions, the Chief Justice gets a vote but a final decision must have a majority of the Court, yet here no other members of the Supreme Court have a say. As a result, 10 of the current 11 members are Roberts’s appointees. It’s almost like having a king again.
How do we change or at least alter this system? One way has been proposed by Connecticut Senator Richard Blumenthal, who suggests that the chief judge for each of the 12 major appeals courts (the level below the Supreme Court) selects one judge. This way there would be guaranteed geographic diversity, and likely ideological diversity as well – for every Deep South judge there would be one from the Northeast. Another bill, sponsored by Rep. Adam Schiff, of California would treat the nomination process like the Supreme Court, where the president nominates and the Senate must give majority approval. A third option, from Rep. Steve Cohen of Tennessee, would allow the majority and minority leader in both the House and Senate to each select two members. This option would ensure that both Democrats and Republicans would have representation on the court.
At the time of the NSA disclosures, the court’s rulings – unlike those of virtually every other American court – were unreleased and top-secret. However, a very small number have since been released after public outcry regarding their secrecy. This development indicates that changes can indeed be made. Changing the method of Foreign Intelligence Surveillance Court judges would be another positive change to implement.