Forgive me if I think of the Foreign Intelligence Surveillance Court as little more than an obscene joke. But what else are we to think of a court that permits only the government to appear to plead its case? That works in secret? That has never had a decision of its reviewed in any meaningful way by the United States Supreme Court? That almost never says “no” to the government?
The court looks less like an adjudicative body dedicated to the protection of the rights of ordinary citizens, than it does a checkout counter for the intelligence community, with federal judges ready, willing and able to provide a receipt for anything the government wishes to steal.
Odds are you never heard of the court. How could you? It meets in a secret room you’ll never see in the Justice Department in Washington, D.C. How convenient is that? The government wants something, and it trundles on down the hall to its own captive court.
The court was created in the late 1970s, after Congress held hearings on the extent of illegal government wiretapping and surveillance of American citizens by the FBI. For decades, no less a figure than J. Edgar Hoover, the first director of the FBI, maintained secret files on dissidents, authorized illegal wiretaps and surveillance of those on his enemies list, and generally mocked with his behavior the very values he pretended to defend. (Don’t take my word about Hoover’s clandestine rape of the Bill of Rights; read Tim Wiener’s, “Enemies: A History of the FBI,” published in 2012. Hoover kept a list of Americans he thought should be locked up in the event of a national emergency. How much do you want to bet there is a similar list today?)
Congress wanted assurances that we’d never have another Hoover. Hence, the Foreign Intelligence Surveillance Act, or FISA. The court opened for business in 1979.
The court is intended to assure that intelligence services seeking confidential information do not violate our rights to be free from unreasonable searches and seizures. Thus, government lawyers appear, unopposed, before a FISA judge to ask for permission to gather confidential information. Not one of the 1,800 requests pitched to the court last year were rejected. Somehow, I doubt that is because the government only asked for what was reasonable.
This secret court is composed of 11 judges. Each is appointed by the chief justice of the Supreme Court from among the ranks of the lifetime federal district court judges. A judge may “preside” over FISA proceedings for only one seven-year term. The current members of the FISA court are: Presiding Judge Reggie Walker, District of Columbia; Rosemary Collier, District of Columbia; Raymond Dearie, New York; Claire Eagan, Oklahoma; Martin Feldman, Louisiana; Thomas Hogan, District of Columbia; Mary McLaughlin, Pennsylvania; Michael Mosman, Oregon; F. Dennis Saylor IV, Massachusetts; Susan Webber Wright, Arkansas; and, James Zagel, Illinois. All but one were appointed to the District Court by Republican presidents, as was, of course, Chief Justice John Roberts.
Although there is a secret FISA appellate court, it has heard few cases in the 34-year history of the court.
I reread the Declaration of Independence for the Fourth of July, as I do each year. I was struck by the colonists’ indignation about the loss of their right to representative government and meaningful judicial process. A good part of the decision to rebel against King George was the conviction that ordinary people were deprived of access to justice in the courts. Where’s the outrage today over a secret court dealing away our right to privacy to intelligence agents appearing in uncontested proceedings? If the colonists tried to muster rebellion among the population of the United States today, they’d be shunned. We’ve lost the taste for liberty. We are content to be sold visions of security by generals cloaked in medals who tell us that the National Security Agency knows what is good for us. Should I thank the NSA’s director, Gen. Keith Alexander, for snooping through my phone records?
I think not. He can tell me until the veins pop from his forehead about all the times he saved me from secret terrorist plots. I’m not buying the boot-licking trust and obey spiel. There was a time, general, when the military took its commands from civilian leadership. We endured for generations without a secret cadre of spies managing our security with paternalistic secrecy.
The Fourth Amendment’s language is simple. It prohibits unreasonable searches and seizures, and it requires a warrant to search through our private papers and our homes. But the courts have become adept at creating one exception after another to the warrant requirement. It is not too harsh to assert that today the government abuses the Fourth Amendment daily, aided by the growing body of exceptions an activist conservative court creates.
Just how far has the balance tipped in favor of the government?
In 1968, three White Panthers, Lawrence Plamondon, John Sinclair and John Waterhouse Everett, detonated an explosive device at a CIA recruiting station in Ann Arbor, Mich. The men were eventually arrested and brought to trial. The defense asked the trial court to review any illegal surveillance of the men, suspecting that the FBI relied upon illegal recordings to make its case. When Attorney General John Mitchell informed the court that Plamondon was, in fact, recorded on secret tapes made without a warrant, the court ordered that the tapes be turned over to the defense. When the government refused to do so on national security grounds, the case was dismissed. The dismissal was ultimately upheld by the Supreme Court and Plamondon went free.
Such a result is inconceivable now. Today we’d wave the flag with such fury over the bombing of federal property, we’d be prepared to forgive any excess to bring the “terrorists” to justice. We’ve drones to deal with such people — point and click summary justice.
FISA has sold out the Fourth Amendment, and the American people. I don’t want secret courts protecting my rights to be let alone. I don’t want government foxes trotting to the door of the in-house chicken coop court asking for permission to wiretap me. A court without an adversary to test the government’s assertions is no court at all.