| It isn't immediately obvious what the catch is. Why can't a Court of independent Federal Judges rule on these cases? After all, without immunity, that's essentially what will happen anyway. Well, no. Two big differences here: 1) Without FISA changes, the various lawsuits will go to various courts rather than all to the FISC, and 2) normal courts operate in the open, and rule openly whereas the FISC is by default secretive.
But beyond that, and the real point of this diary, we need to examine the unique and peculiar nature of the Foreign Intelligence Surveillance Court. Most important, that its membership is chosen (from the ranks of sitting Federal Judges) by the Chief Justice, not the President. You may remember a new CJ was confirmed not all that long ago, and he's not exactly a friend of civil liberties nor a strong believer in trifles like separation of powers, or Congress itself really. John Roberts decides who sits on the FISC.
You might be thinking that the FISC can't be so bad, since they ruled contrary to conservative wishes last year. Well, then they ruled against releasing that previous ruling (thus creating an alarming item of secret law). Whatever scruples they had, is going away because the membership of the court is changing (appointments to the FISC are for 7 years).
Two new Judges were appointed to the FISC just last week:
Judge Mary A. McLaughlin was appointed to the bench in 2000 by President Clinton. [...]
Judge James B. Zagel was appointed in 1987 by President Reagan.
Seems copacetic no? A Reagan appointee balanced against a Clinton Judge. Nope. We often blot out the fact that Clinton faced a hostile Senate for 6 of his 8 years in Office, one that bottled up many of his appointees in Committee rather than overtly rejecting them. Reagan on the other hand did have a couple terms of a Republican Senate and even when it was run by Democrats, he had an easier time getting his Judges through (since no one does obstruction like Republicans). So it turns out that McLaughlin was appointed by Clinton, but:
P.S. It turns out that Judge McLaughlin is not a Democrat. Although she was appointed by President Clinton, she served as an aide to Senator Specter (R-PA) and was named to the bench as part of a bipartisan package of nominees.
Ok, so they're both Republicans, but sometimes even Republican judges actually do the unthinkable and support the rule of Law in their rulings.
Zagel:
While most lawyers view Judge Zagel as fair, some lawyers are concerned that he will bring a political agenda to bear in certain classes of cases. He is viewed as very prosecution-oriented. He is also viewed as unsympathetic to civil rights plaintiffs. Many lawyers claim he will stretch the law to meet his political views, or his own notion of what is fair in a particular case.
Yes, I can see why Roberts would like a man such as him. McLaughlin:
The decision and order in our case in Citizens for Health v. Thompson was issued by District Court Judge Mary McLaughlin this afternoon. She has ruled in our favor on standing but, unfortunately, against us on the other issues. The decision is quite thinly reasoned and principally recites and endorses the government's arguments with little analysis.
Not so promising either. I'm going to call this two "potential McCain Supreme Court Nominees" and leave more pejorative and creative invective to your imaginations.
Who are they replacing? HW Bush appointee Nathaniel M. Gorton who probably wasn't on the side of the angels, and James G. Carr, appointed by Clinton before the Republicans took over Congress, and was apparently outstanding. So +1 to the Unitary Executive crowd so far.
What about the Rest of the Court?
| Name | Appointed By | Term on FISC Expires | Comment | Named to FISC by |
| Colleen Kollar-Katelly Presiding | Bush41/Clinton | 2009 | Unsure | Rehnquist |
| John D Bates | Bush43 | 2013 | Worked for Ken Starr | Roberts |
| Dee Benson | Bush41 | 2011 | Wacky Christianist ruling | Rehnquist |
| Robert C Broomfield | Reagan | 2009 | Hmm | Rehnquist |
| Reggie B Walton | Bush43 (in 2001) | 2014 | Might be ok | Roberts |
| Malcolm Howard | Reagan | 2012 | No help here | Rehnquist |
| George P Kazen | Carter | 2010 | Might be ok | Rehnquist |
| Frederick Scullin Jr | Bush41 | 2011 | Pro-Government | Rehnquist |
| Roger Vinson | Reagan | 2013 | Did his part in the 2000 election theft | Roberts |
Well, we're up to 5 of the 11 now being appointed by Roberts. I think Reggie Walton might be ok (he certainly threw the book at Scooter Libby anyway) but I suspect he was chosen because the court is required by the 2001 Patriot act to have 3 DC Circuit members (for rapid response in case the government...try not to laugh...needs a warrant in an emergency). Rehnquist wasn't exactly the friend of liberty but I don't think he was using his appointment powers to build a star chamber of FED-Soc types to support the Executive power grab, at least not early on in the Bush Presidency and the Clinton years, from which many of the remaining 6 date to. I doubt he gave it much thought, since the FISC just wasn't that important as an issue.
This is why any FISA law change that allows the government to request that the FISC rule on the cases means that John Roberts' hand picked group of Judges will rule on the matter. If there is an appeal, it goes first to the 3-judge FISC court of review, of which now 2 Judges, including the Presiding Judge Bruce Selya were picked by Roberts. After that, the appeal goes to SCOTUS.
It's also likely why this deal is suddenly acceptable to Republicans. They've ridden out the FISC terms of 1 or more Judges they couldn't trust to rule for immunity and now they know they've got it rigged, if not at the FISC itself, for sure in the FISC review panel. That way, the Supreme Court never has to get its hands dirty in this matter. Even if a case is appealed to them, they'll probably deny cert (though the 4 liberal Judges can force cert).
I don't claim to be an expert on any of the Judges above, but I did spend some time trying to get a sense of each one. A few I'm not all that sure about. The stuff I linked to is from some less reliable sources too. A couple of them stood out for wingnuttiness. Bates - whose involvement with Ken Starr says enough to me, and Vinson, who in addition to his peripheral involvement in generating "voter fraud" noise stories in Florida during the recount, has this unflattering profile. Surprise, both picked by Roberts. Howard's link includes his reaction to the news Bush had been bypassing his court:
But Judge Malcolm Howard of eastern North Carolina said he tends to think the terrorist threat to the United States is so grave that the president should use every tool available and every ounce of executive power to combat it.
"I am not overly concerned" about the surveillance program, he said, but "I would welcome hearing more specifics."
So it's not utterly conclusive, but it's a pattern and I'm pretty sure I would not want my fate resting with this court.
Fortunately, the Electronic Freedom Foundation (EFF) sees through this ploy too:
"The purported immunity 'compromise' announced on Thursday by Senator Bond is a pure sham that's even worse than the original immunity provision passed by the Senate," said EFF Senior Staff Attorney Kevin Bankston. "The stacked-deck immunity determination to be made by the court apparently still doesn't include any meaningful review of the telecoms' conduct or the legality of their cooperation with the NSA, simply a review of whether the companies got a piece of paper saying that the president authorized the surveillance. And the deck would be stacked even more by the proposed transfer to the FISA court -- the most conservative and secretive federal court in the nation. Bottom line: it's still immunity, and this so-called compromise concedes nothing."
I could have made the diary a lot shorter, but I think it's important to dig into this and see exactly how conservatives methodically work to stack every deck in play. There hasn't been a Chief Justice of the Supreme Court appointed by a Democratic President since Fred Vinson, who died in 1953, it had to catch up with us eventually. Obviously fixing the FISC appointment process is another deck needing unstacking too. |
