The Atlantic is kinda kidding themselves if they think merely bringing on Democratic judges would make it more 'balanced'. Both parties seem hostile to privacy rights right now (or at least, the primary movers of each party do).
But if a court for example is all white, male, republicans, you are in danger of "dittoheads" cut from the same cloth.
Their names suggest 4 women which is almost acceptable. Cannot guess anything else.
The minimal number of requests that are modified by the court has led experts to characterize it as a rubber stamp. For example, Russell Tice, a former National Security Agency analyst said "It is a kangaroo court with a rubber stamp."http://en.wikipedia.org/wiki/FISA_Court#Criticism
One Democrat resigned: On December 16, 2005, the New York Times reported that the Bush administration had been conducting surveillance against US citizens without the knowledge of the court since 2002. On December 20, 2005, Judge James Robertson resigned his position with the court, apparently in protest of the secret surveillance. The government's apparent circumvention of the court started prior to the increase in court-ordered modifications to warrant requests.
so...we're going to hope they have diverse opinions based on their pigment, sex, and political affiliation? Why is profiling in this case acceptable. Besides, didn't the court rule that these actions taken by government were unconstitutional? Would you have preferred a different outcome?
The composition of the court based on pigment, sex, and political affiliation makes it pretty clear that profiling was used to select the court members.
The point isn't that they would have diverse opinions otherwise, the point is they were obviously selected to have homogeneous opinions. As if that wasn't bad enough it's obvious that they were selected using ethnic profiling, if not sexism.
How on earth could you conclude that? It's a group of 14 people. It isn't terribly unlikely that they weren't chosen solely on race and gender. Not to mention that they're all federal judges, and the federal judiciary isn't well known for its diversity.
What exactly do you mean by profiling? Do you mean deliberately choosing a group of people so that they all fit a certain set of demographic criteria? If so, then I am arguing that there is not necessarily profiling going on. Just because a group is skewed demographically doesn't mean there is active profiling going on. There could be unconscious biases or other effects at play.
I don't disagree that they were probably chosen to have homogeneous opinions. I do disagree that there is clear evidence of ethnic or gender profiling. I think they just said "we need experienced judges who can be trusted to keep things secret and have strongly favorable views towards law enforcement and intelligence services." It happens that most such people are old, White, Republican men.
I can see the "republican" part, since they have to deal with requests from the government, but "white" and "male"? Do sex and race really have that much bearing on one's thinking about legal matters, especially at the ostensibly high level of a federal court?
We have people stop-and-frisked for being black and people being taken off planes for flying-while-muslim. You don't think race has anything to do with how people experience things in this world?
I am straight, white, formerly republican, and find all of those things apalling when they happen. I didn't need to get burned by the fire to recognize that it burns.
Do you honestly not see any advantage of having people with a range of life experiences on a court? Especially on a court that is primarily tasked with making secret rulings to spy on [mostly] non-white people.
I finally comprehend how David Simon continues to argue that domestic surveilance is not a problem.
He thinks that the "Left" (his term) don't care enough about bad government actors when it affects poor black people, and so now, when bad government actors threaten members of the Left, they have no right to complain about bad government actors ruining a theoretically sound program.
He's essentially trolling the Left, refusing to join them in accusing the government of having bad actors, holding his support hostage until they join him in taking down the bad actors everywhere else in government.
I really really wish we would push for a model of oversight like that the Romans adopted when they appointed ordinary everyday citizens like Cincinnatus appointed as temporary dictator in times of distress [0]
This court should have oversight of peers, not career politicians with entrenched interests.
I have no idea what the purpose of this article is.
Exhibit A is the Supreme Court. Many of the judges who were appointed by Republican presidents have turned out to be rather liberal.
Look no further than Justice Robert's (appointed by Bush in 2005) ruling on the individual mandate when he sided with the other Liberal judges in upholding its constitutionality.
It doesn't do secret Article III courts. That doesn't mean every review or adjudication process in the government is public.
Most of the evidence I can find suggests that FISC isn't an Article III court. It happens to be composed of appointed federal court judges, but that's as close to "Article III-iness" as it gets.
Real Article III courts have judges appointed by the executive branch who sit with lifetime tenure.
Instead, the word "court" in FISC turns out to be a little misleading. FISC operates more in the manner of a review board. The Constitution doesn't set out limits to foreign intelligence operations, and FISA ostensibly concerns itself exclusively with foreign surveillance operations (and with the checks that prevent foreign surveillance from "mission creeping" into domestic surveillance, which is where things start to get fuzzy). The Constitution does not require NSA to obtain warrants to surveil foreign targets (no country really requires their spies to get warrants), and thus doesn't fundamentally require NSA to get court authorization to do what it does.
Instead, FISC is a sort of half-measure intended to allow the Congress to have some ongoing check over what NSA does, by passing laws and providing a body to ensure that those laws are enforced.
Although the U.S Supreme Court consists of men and women, whites, blacks, and Latinos, Catholics and Jews, it is also very non-diverse. All nine of the U.S Supreme Court justices attended either Harvard or Yale law school (Ruth Bader Ginsburg transferred from Harvard to Columbia).
This means that what were probably the most formative years in the justices' legal careers were all spent at the same institutions.
It's a bit of stretch to say that highly intelligent 22-25 year olds were brainwashed by their law schools. They had their lives' formative years before they showed up at law school.
Sotomayor has commented quite a bit in that regard.
FISC judges are appointed by the (Republican) Chief Justice of the Supreme Court from among the federal court judges, among whom Republicans outnumber Democrats something like 100 to 60.
I've noticed a particularly troubling trend among my friends who are rabidly partisan. Now that some of these privacy issues are out in the open, there's a desperation to pin it on the other party.
Just to be clear: as another commenter said, I don't give a rat's ass if the court consists of the greatest figures in western science. We don't do secret courts.
It's a serious mistake trying to turn this into the usual one party versus the other thing. The U.S. got here because of systemic problems; the system itself has been set up in a bad way. The qualities of the people involved -- their party affiliation, their tax return status, whether they like cats or not -- that's all bullshit. And we should call bullshit on folks who try to change the subject in this manner.
I'll go even farther. I like the NSA. I think they do a great job, I think they have some of the smartest people working in government right now, and I think the country owes a humongous amount of gratitude towards them. If anything, these guys are my heroes.
But that doesn't make the NSA spying right. If you tell the NSA to do fucked up stuff, and you set up a system where they are encouraged and promoted for doing fucked up stuff, you're going to have an agency full of awesome people working as hard as they can to do fucked up stuff. They're not supposed to guide national intelligence gathering -- the policy, structure, and ethics are created by congress and the president -- they're the ones executing it.
If we want to fix what's wrong, we're going to need to get our head out of our asses in regards to which team is better than the other and start talking about structural changes that can bring intelligence gathering back in line to where it's supposed to be.
> It's a serious mistake trying to turn this into the usual one party versus the other thing.
That depends what you mean by "mistake". Historically speaking, obfuscating the real issues by slinging mud at the other guy and pretending you're enormously different and it's not your problem has proven effective in rallying the proles to fall in line, is it any surprise this would be a continuously attempted tactic in this instance also?
National defense is great, right? Nobody can go on record and say otherwise.
But how much does the NSA protect us vs. support a system that generates the dangers in the first place? Bin Laden's attack on the United States was a direct response to our military presence in Saudi Arabia.
The Military Industrial Complex manufactures conflict and perpetuates the madness. They're not heros, they're just doing their job.
How much protecting would the U.S. need from the modern world if we weren't such greedy oppressors to the rest of the planet?
The judges themselves aren't all members of any particular party. The article is attributing judges to which President appointed them to the bench, and since all Presidents in their lifetime have been Republicans or Democrats, therefore all judges have been appointed by either a Republican or a Democrat.
I could not help but notice the name of the current presiding Judge John D. Bates not included in the list. This link to the FISC Court rules names Judge Bates on the Cover: http://www.uscourts.gov/uscourts/rules/FISC2010.pdf
I see Chief Justice Robert's appointed Judge Bates, effective July 1, 2013, Director of the Administrative Offices of the United States Court. However, that occurred June 11, 2013 and presumably he will continue to be the presiding Judge of FISC until that time.
I don't have sources at hand, but I recall reading that these judges only work part time on FISC; they have additional case load to deal with. In addition, law students that work for the judges (a standard practice, from what I understand from a law student) probably go over the material and write their opinions for them, and then they sign it.
I don't think it matters to them why the fuck the NSA wants to tap these people, because they've got other shit to do and it's just phone numbers they're looking up. Anyway, why would one party affiliation care more about it than the other? Obama's a dem and he's pretty okay with warrantless wiretapping.
The problem is the FISC is not adversarial. In a normal court, these judges are used to dealing with the issues presented to them by both parties. Both parties submit briefs, arguing both sides of the issue, and the judge applies the facts and law to the case based on the issues presented to them by the parties. Judges generally do not inject issues that aren't presented to them by the parties.
In contrast, FISC is a one-sided event. Only the government presents its case and asks the judge to make a decision without any opportunity for any other party to make the other side of the argument. So it doesn't surprise me that the judges are just approving what the government asks for. It's similar to a legal default in any other court. When the other party doesn't show up, the party that's standing there wins, no matter what their argument is. It's automatic.
EDIT: I should say that this is one of the problems with FISC court, not just the problem. A secret court is antithetical to an open and free society in the first place.
To repeat a comment downthread: I think the most deceptive thing about FISC is that it's not really a court. It happens to be staffed with federal court judges, and it can issue binding court orders on a limited set of subject areas, but that's it; in every other way, FISC functions as a form of internal review board.
FISC exists because there is no Constitutional anchor to policies regarding foreign intelligence. Foreign powers do not have rights under the Fourth Amendment. No state really requires its spies to get warrants for all their foreign targets.
But in the wake of the Nixon administration, Congress decided it needed some way to create and enforce policy for NSA. It can pass laws, but without an ongoing process by which NSA's actions are forced to engage those laws, they'd be toothless. So we get FISC, a sort of para-court.
Hmm, I can't seem to find a way to contact these judges. I'd love to mail them a letter expressing my concerns and to voice my opinions to them. At least to give their clerks a call and try to move towards positions I feel are more in line with American culture. Anyone here got a list of numbers or addresses?
Edit: Found contact info for:
The Honorable Thomas F. Hogan
U.S. District Court for the District of Columbia
E. Barrett Prettyman U.S. Courthouse
333 Constitution Avenue, NW
Washington, DC 20001
(202) 354-3420
Chambers of Judge Reggie B. Walton's contact information:
Telephone Number: 202-354-3290
Fax Number: 202-354-3292
Address:
United States District Court for the District of Columbia
E. Barrett Prettyman United States Courthouse
333 Constitution Avenue, N.W.
Washington, D.C. 20001
45 comments
[ 5.2 ms ] story [ 108 ms ] threadMore great coverage from The Atlantic shedding light on all this.
I'm going to have to subscribe.
But if a court for example is all white, male, republicans, you are in danger of "dittoheads" cut from the same cloth.
Their names suggest 4 women which is almost acceptable. Cannot guess anything else.
The minimal number of requests that are modified by the court has led experts to characterize it as a rubber stamp. For example, Russell Tice, a former National Security Agency analyst said "It is a kangaroo court with a rubber stamp." http://en.wikipedia.org/wiki/FISA_Court#Criticism
One Democrat resigned: On December 16, 2005, the New York Times reported that the Bush administration had been conducting surveillance against US citizens without the knowledge of the court since 2002. On December 20, 2005, Judge James Robertson resigned his position with the court, apparently in protest of the secret surveillance. The government's apparent circumvention of the court started prior to the increase in court-ordered modifications to warrant requests.
The point isn't that they would have diverse opinions otherwise, the point is they were obviously selected to have homogeneous opinions. As if that wasn't bad enough it's obvious that they were selected using ethnic profiling, if not sexism.
Are you arguing that there's not profiling, or at what level the profiling begins?
I don't disagree that they were probably chosen to have homogeneous opinions. I do disagree that there is clear evidence of ethnic or gender profiling. I think they just said "we need experienced judges who can be trusted to keep things secret and have strongly favorable views towards law enforcement and intelligence services." It happens that most such people are old, White, Republican men.
http://davidsimon.com/the-nigger-wake-up-call/
He thinks that the "Left" (his term) don't care enough about bad government actors when it affects poor black people, and so now, when bad government actors threaten members of the Left, they have no right to complain about bad government actors ruining a theoretically sound program.
He's essentially trolling the Left, refusing to join them in accusing the government of having bad actors, holding his support hostage until they join him in taking down the bad actors everywhere else in government.
This court should have oversight of peers, not career politicians with entrenched interests.
[0] http://en.wikipedia.org/wiki/Cincinnatus
http://en.wikipedia.org/wiki/Reggie_Walton
https://en.wikipedia.org/wiki/Raymond_J._Dearie
http://en.wikipedia.org/wiki/Rosemary_M._Collyer
http://en.wikipedia.org/wiki/Claire_Eagan
http://en.wikipedia.org/wiki/Martin_Leach-Cross_Feldman
http://en.wikipedia.org/wiki/Thomas_F._Hogan
http://en.wikipedia.org/wiki/Mary_A._McLaughlin
http://en.wikipedia.org/wiki/Michael_W._Mosman
http://en.wikipedia.org/wiki/F._Dennis_Saylor_IV
http://en.wikipedia.org/wiki/Susan_Webber_Wright
http://en.wikipedia.org/wiki/James_Zagel
http://en.wikipedia.org/wiki/FISA_Court#Criticism <<<--- apparently they were already known
Exhibit A is the Supreme Court. Many of the judges who were appointed by Republican presidents have turned out to be rather liberal.
Look no further than Justice Robert's (appointed by Bush in 2005) ruling on the individual mandate when he sided with the other Liberal judges in upholding its constitutionality.
Most of the evidence I can find suggests that FISC isn't an Article III court. It happens to be composed of appointed federal court judges, but that's as close to "Article III-iness" as it gets.
Real Article III courts have judges appointed by the executive branch who sit with lifetime tenure.
Instead, the word "court" in FISC turns out to be a little misleading. FISC operates more in the manner of a review board. The Constitution doesn't set out limits to foreign intelligence operations, and FISA ostensibly concerns itself exclusively with foreign surveillance operations (and with the checks that prevent foreign surveillance from "mission creeping" into domestic surveillance, which is where things start to get fuzzy). The Constitution does not require NSA to obtain warrants to surveil foreign targets (no country really requires their spies to get warrants), and thus doesn't fundamentally require NSA to get court authorization to do what it does.
Instead, FISC is a sort of half-measure intended to allow the Congress to have some ongoing check over what NSA does, by passing laws and providing a body to ensure that those laws are enforced.
This means that what were probably the most formative years in the justices' legal careers were all spent at the same institutions.
Sotomayor has commented quite a bit in that regard.
Just to be clear: as another commenter said, I don't give a rat's ass if the court consists of the greatest figures in western science. We don't do secret courts.
It's a serious mistake trying to turn this into the usual one party versus the other thing. The U.S. got here because of systemic problems; the system itself has been set up in a bad way. The qualities of the people involved -- their party affiliation, their tax return status, whether they like cats or not -- that's all bullshit. And we should call bullshit on folks who try to change the subject in this manner.
I'll go even farther. I like the NSA. I think they do a great job, I think they have some of the smartest people working in government right now, and I think the country owes a humongous amount of gratitude towards them. If anything, these guys are my heroes.
But that doesn't make the NSA spying right. If you tell the NSA to do fucked up stuff, and you set up a system where they are encouraged and promoted for doing fucked up stuff, you're going to have an agency full of awesome people working as hard as they can to do fucked up stuff. They're not supposed to guide national intelligence gathering -- the policy, structure, and ethics are created by congress and the president -- they're the ones executing it.
If we want to fix what's wrong, we're going to need to get our head out of our asses in regards to which team is better than the other and start talking about structural changes that can bring intelligence gathering back in line to where it's supposed to be.
That depends what you mean by "mistake". Historically speaking, obfuscating the real issues by slinging mud at the other guy and pretending you're enormously different and it's not your problem has proven effective in rallying the proles to fall in line, is it any surprise this would be a continuously attempted tactic in this instance also?
But how much does the NSA protect us vs. support a system that generates the dangers in the first place? Bin Laden's attack on the United States was a direct response to our military presence in Saudi Arabia.
The Military Industrial Complex manufactures conflict and perpetuates the madness. They're not heros, they're just doing their job.
How much protecting would the U.S. need from the modern world if we weren't such greedy oppressors to the rest of the planet?
Really, after all that has happened, why are we continuing to pretend that Democrat vs. Republican actually matters here?
Judge Bates was originally nominated to the bench by GW Bush and obviously appointed to FISC by Chief Justice Roberts. (http://en.wikipedia.org/wiki/John_D._Bates)
I see Chief Justice Robert's appointed Judge Bates, effective July 1, 2013, Director of the Administrative Offices of the United States Court. However, that occurred June 11, 2013 and presumably he will continue to be the presiding Judge of FISC until that time.
I don't think it matters to them why the fuck the NSA wants to tap these people, because they've got other shit to do and it's just phone numbers they're looking up. Anyway, why would one party affiliation care more about it than the other? Obama's a dem and he's pretty okay with warrantless wiretapping.
In contrast, FISC is a one-sided event. Only the government presents its case and asks the judge to make a decision without any opportunity for any other party to make the other side of the argument. So it doesn't surprise me that the judges are just approving what the government asks for. It's similar to a legal default in any other court. When the other party doesn't show up, the party that's standing there wins, no matter what their argument is. It's automatic.
EDIT: I should say that this is one of the problems with FISC court, not just the problem. A secret court is antithetical to an open and free society in the first place.
FISC exists because there is no Constitutional anchor to policies regarding foreign intelligence. Foreign powers do not have rights under the Fourth Amendment. No state really requires its spies to get warrants for all their foreign targets.
But in the wake of the Nixon administration, Congress decided it needed some way to create and enforce policy for NSA. It can pass laws, but without an ongoing process by which NSA's actions are forced to engage those laws, they'd be toothless. So we get FISC, a sort of para-court.
Edit: Found contact info for:
The Honorable Thomas F. Hogan U.S. District Court for the District of Columbia E. Barrett Prettyman U.S. Courthouse 333 Constitution Avenue, NW Washington, DC 20001 (202) 354-3420
Chambers of Judge Reggie B. Walton's contact information: Telephone Number: 202-354-3290 Fax Number: 202-354-3292 Address: United States District Court for the District of Columbia E. Barrett Prettyman United States Courthouse 333 Constitution Avenue, N.W. Washington, D.C. 20001
Give a call folks!