Retired U.S. District Judge Nancy Gertner, now a professor at Harvard Law School, is challenging the idea that the Foreign Intelligence Surveillance Court, set up under the FISA law to operate in secret to handle some cases involving national security, is much of a meaningful safeguard for our privacy or our liberty. She got up at a talk the other day and said:
As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced.
Two reasons: One … The Fourth Amendment frameworks have been substantially diluted in the ordinary police case. One can only imagine what the dilution is in a national security setting. Two, the people who make it on the FISA court, who are appointed to the FISA court, are not judges like me. Enough said…
It’s an anointment process. It’s not a selection process. But you know, it’s not boat rockers. So you have a [federal] bench which is way more conservative than before. This is a subset of that. And it’s a subset of that who are operating under privacy, confidentiality, and national security. To suggest that there is meaningful review it seems to me is an illusion.
I did not know that the members of the court were appointed by the Chief Justice, though I’d never really given much thought to who appointed them. Gertner also pointed out that there is little reason why such cases could not be handled by regular civilian courts:
I’m very troubled by that. When you get cases in court, in regular civilian court that have national security issues that have classified information, we developed a process whereby the parties would develop security clearances and it could be presented to the court without it being disclosed to anyone else. It is not entirely clear to me why a civilian court with those protections that is otherwise transparent couldn’t do the job. That’s the way we did it before. Then we moved to this national security court. The notion that we have to have a conversation about major incursions on civil liberties and that we have step back and say we don’t really know, we haven’t seen the standards, we haven’t seen the opinions is extraordinary troubling in a democracy.
There is one single example of a civilian case resulting in the release of classified information to the public (with no damage done as a result, by the way) and the prosecutor in that case was Andrew McCarthy, who now goes around scaring the hell out of everyone about how civilian trials lead to such releases. There’s just one problem — he failed to file the paperwork to protect the document that was released, which he could have done under federal law.