It’s the court that hears appeals when the government
loses in the FISA Court

What’s the easiest job in government?

Chief Justice John Roberts

We’re not sure.  But a good candidate for that honor would be judge on the Foreign Intelligence Surveillance Court of Review.

This court should not be confused with the Foreign Intelligence Surveillance Court (FISC), which issues secret orders in response to government requests to conduct surveillance.

As the name implies the FISC Court of Review is the court that hears appeals from the Foreign Intelligence Surveillance Court (commonly known as the “FISA Court”) itself.

But here’s the catch, as in Catch-22:

As we noted in a previous post to this blog, and in our report on the FISA Court, that court hears only one side of the story – the government’s.  So only the government can appeal if it loses.  But, of course, since the FISA Court hears only the government’s side of the story, the government almost never loses.  In fact, from 2002 to 2012 it lost 0.07 percent of the time.  Before 2002 it never lost at all.

That’s why the Court of Review hasn’t even met since 2009 – which was the last time the government actually had a request rejected by the FISA Court.

All of this explains why the announcement that Chief Justice John Roberts has named a new judge to the Court of Review is not exactly earth-shattering news.

It is, however, still another illustration of Roberts’ political savvy.  As we note in our report, one of the key problems with the FISA Court is that the Chief Justice of the United States gets to name all the judges – with no advice and consent required from the Senate, or anyone else.  And, to a far greater degree than his predecessors, Roberts has stacked the FISA Court with judges initially appointed by Republican presidents, many of whom have a history of working as prosecutors or for the executive branch.

With that record under renewed scrutiny, Roberts went in a different direction for the Court of Review – the court that actually does almost nothing: He named José A. Cabranes, who was first named to the federal bench by President Carter and elevated to the United States Court of Appeals for the Second Circuit by President Clinton. (Though, as The New York Times notes, Cabranes is considered among the more conservative-leaning Democratic appointees on crime and security issues.” 

This one move illustrates both of the key problems with the FISA process highlighted in our report: The lack of a true adversarial process, and the fact that the Chief Justice names all the judges with no review.

Both these issues deserve the urgent attention of Congress when it returns from recess.  Senators Richard Blumenthal, D-Conn., Tom Udall, D-N.M., and Ron Wyden D-Ore.,

have introduced bills to address both problems, and their proposals warrant their colleagues’ prompt consideration.  In the meantime, we wish Judge Cabranes the best of luck in his new second job – in finding something to do.

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