The Most Secretive Court in America May Also Be the Most Conservative

By the end of this month, the Foreign Intelligence Surveillance Court is expected to issue what could be the most important order in its 35-year hidden history, ruling on a motion filed by the ACLU that asks the court to publish all of its prior opinions evaluating the meaning, scope and constitutionality of Section 215 of the Patriot Act.

Codified as part of the omnibus Foreign Intelligence Surveillance Act, this is the law that empowers the FBI and the National Security Agency to obtain secret orders from the Foreign Intelligence Surveillance Court compelling third parties such as phone companies to produce “tangible things” such as individual phone activity records related to foreign intelligence or terrorism investigations. The orders are accompanied by admonitions forbidding disclosure of their existence.

The section served as the legal basis for the surveillance court order published in June by The Guardian that directed Verizon Business Services to produce on an ongoing daily basis “all call detail records or ‘telephony metadata’… for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”

So how will the surveillance court rule? If past practice is any indication, the motion will be denied in an order that is either kept under seal, worded very generally or heavily redacted for public consumption. From its inception through 2012, the court rejected a scant 40 government surveillance applications while approving nearly 34,000, virtually all of which have remained classified.

How and why the court reaches its decisions remains largely unknown. According to the ACLU’s motion, the court to date has released just three redacted opinions setting forth its views on the lawfulness of the nation’s surveillance programs, the first in the early 1980s, the second in 2002 and the last in 2009. Of these, only the 2002 opinion issued by the FISA Court of Review — in Re: Sealed Case, 310 F.3rd 717, which upheld FISA’s constitutionality under the Fourth Amendment — is published in the official reports of federal court decisions available to both lawyers and the public.

There are basically two reasons the ACLU’s motion seeking disclosure of additional opinions faces long odds. The first is that those in power, with few exceptions from the president to Congress, believe — or at least want the rest of us to believe — that the surveillance court is an effective judicial safeguard against executive overreach and that its closed-door operations provide, in the words of President Obama, an acceptable and necessary “tradeoff” between the need for security and the right to privacy.

The second has to do with the structure of the court itself and the judges who sit on it. The Foreign Intelligence Surveillance Court is a unique judicial body, not only in terms of its procedures but in terms of the political leanings of its judges, who comprise a panel so uniformly Republican that the five-justice right-wing majority on the current Supreme Court appears positively liberal in comparison.

Unlike other judicial appointments, which must be publicly confirmed by the Senate, the chief justice of the Supreme Court appoints the 11 U.S. District Court judges who sit on the surveillance court for staggered seven-year terms, along with three other federal circuit court judges who staff the FISA Court of Review, which hears appeals that the government may file on the few surveillance applications that are denied. Appeals from the Court of Review can be made only to the Supreme Court. There have been none to date.

The surveillance court’s secrecy begins with the surveillance applications that it hears on an “ex parte” basis. At a hearing for this court, the targets of surveillance are not given an opportunity to appear, nor is the government required to present evidence of the kind of specific probable cause needed to obtain a search warrant in an ordinary criminal case. Rather, under FISA, to obtain an order permitting it to read the content of a communication, the government needs to present evidence only that the surveillance target is a foreign power or an agent of one.

Orders like the one directed at Verizon Business Services under Section 215, authorizing the government to seize but not read entire telephone metadata bases, require an even lesser showing of individualized suspicion. The Verizon order was approved by Roger Vinson, a senior federal district court judge who normally sits in the panhandle region of Florida. A Reagan appointee and former Navy lieutenant, Vinson gained notoriety in 2011 as the “tea party’s judge” for lifting language from a legal brief filed by the archconservative Family Research Council, and declaring the entire Affordable Care Act unconstitutional.

Although Vinson’s term on the surveillance court expired in May, the panel’s current roster of 11 includes 10 judges who were appointed to their federal district court positions by Republican presidents. The Court of Review, which rarely convenes as so few surveillance applications are denied, has one Republican and one Democratic appointee, along with one vacancy.

Some of the more notable Republican stalwarts on the current surveillance panel and the Court of Review include:

Susan Webber Wright from the eastern district of Arkansas, known for dismissing Paula Jones’ sexual harassment suit against Bill Clinton, and for jailing onetime Clinton associate Susan McDougal for 18 months for civil contempt after McDougal refused to answer questions in connection with special prosecutor Kenneth Starr’s investigation of the Whitewater scandal.

Rosemary Collyer from the district court of Washington, D.C., known for her ruling upholding the CIA’s position that releasing information about the administration’s targeted drone program would damage national security. Collyer’s opinion was later overturned on appeal.

Martin Leach-Cross Feldman from the eastern district of Louisiana, who in 2010 issued a preliminary injunction blocking the Obama administration’s six-month moratorium on deep-water oil drilling. Feldman’s 2008 financial disclosure form indicated that in that year he held stock in Transocean, the company that owned the defective Deepwater Horizon rig that precipitated the disastrous Gulf of Mexico oil spill of 2010.

Morris Arnold of the 8th U.S. Circuit Court of Appeals, which spans a swath of largely red states in the nation’s midsection extending from North Dakota to Arkansas. Known by the moniker “Buzz,” Arnold is a former chair of the Arkansas Republican Party. He is currently the presiding judge of the Court of Review.

Soon after The Guardian’s publication of the Verizon order, President Obama declared that he welcomes a healthy national debate on the state of privacy in today’s America. Let’s take him at his word, and without compromising our genuine interests in national security, join the discussion along with the ACLU by lifting the veil on the nation’s undeniably most secretive and arguably most conservative judicial body.