In the aftermath of the Snowden revelations, it has become increasingly clear, that the institution designed by the law to inject oversight into the process, the FISA Court, has repeatedly ignored both the intent of the law and the protections provided Americans by the Constitution. FISA has been a blank check for national security and law enforcement, providing no oversight whatsoever. Today I learned something that shocked me, and explains why we have such a sad state of affairs.
Chief justice of the U.S. is a pretty big job. You lead the Supreme Court conferences where cases are discussed and voted on. You preside over oral arguments. When in the majority, you decide who writes the opinion. You get a cool robe that you can decorate with gold stripes.
Oh, and one more thing: You have exclusive, unaccountable, lifetime power to shape the surveillance state.
To use its surveillance powers — tapping phones or reading e-mails — the federal government must ask permission of the court set up by the Foreign Intelligence Surveillance Act. A FISA judge can deny the request or force the government to limit the scope of its investigation. It’s the only plausible check in the system. Whether it actually checks government surveillance power or acts as a rubber stamp is up to whichever FISA judge presides that day.
The 11 FISA judges, chosen from throughout the federal bench for seven-year terms, are all appointed by the chief justice. In fact, every FISA judge currently serving was appointed by Chief Justice John Roberts, who will continue making such appointments until he retires or dies. FISA judges don’t need confirmation — by Congress or anyone else.
No other part of U.S. law works this way. The chief justice can’t choose the judges who rule on health law, or preside over labor cases, or decide software patents. But when it comes to surveillance, the composition of the bench is entirely in his hands and so, as a result, is the extent to which the National Security Agency and the Federal Bureau of Investigation can spy on citizens.
“It really is up to these FISA judges to decide what the law means and what the NSA and FBI gets to do,” said Julian Sanchez, a privacy scholar at the Cato Institute. “So Roberts is single handedly choosing the people who get to decide how much surveillance we’re subject to.” … [emphasis added]
Inserted from <Bloomberg>
While I am not happy with Obama’s performance in this area, I also feel sorry for him. He has so much on his plate, that he does not have the time to micromanage any one area, so he leaves it to professionals. He is almost forced to use the tools given him, because the consequences of failure are so great, given the Republican proclivity to impose blame and generate fear. For example, the Obama administration has taken far more heat over four American deaths at Benghazi, after Republicans had refused to allow spending adequate for embassy security, than the Bush administration endured over their total incompetence in allowing thousands of American deaths on September 11, 2001.
The only way to change this is to change the law, and to make that happen, Democrats will need complete control of both houses of Congress.