Thursday, February 8, 2018

The FISA Court's Judges?

There's lots of nonsense being spread about the FISA Court. (Officially, the Foreign Intelligence Surveillance Court.) Not that it's surprising that nonsense should be passed around as fact. Not with hyper-partisanship, hyper-polarization, and resulting nonsensical claims being given the veneer of validity by increasingly numerous and feverish "news" venues and commentators.

One such claim currently being widely and wildly circulated throughout extreme right-wing websites and social media is that the FISA Court judges are Obama appointees. The particular assertion echoing in these circles is that 10 of the 11 FISA Court judges were appointed to the bench by former President Obama. Consequently, of course, whatever that court does is highly suspicious. Indeed, the warrants issued by the FISA Court in the Russia investigation should not be trusted because they were issued by corrupt judges--i.e., Obama appointees.

(click to enlarge)
Well, at least they got the number 11 right.
Yes, there are 11 judges on the FISA Court. The rest of the claim is utter gibberish. But with facts and objectivity so thoroughly devalued in much public discourse today, it's to be expected that such baseless assertions are accepted as true and repeated with reckless indifference to their source or veracity. The nonsense about the FISA Court--apparently very appealing to those who want to believe that the entire Russia investigation is a hoax--is just one example of the sort of widespread, groundless assertions we've come to expect.

So what's the truth about the FISA Court? For those who still care about facts, what are they? Here are the relevant ones about the court's membership:

  • Appointments to the FISA Court are made by the Chief Justice of the United States. (Not by the President, past or present. Never has been.)
  • The current Chief Justice, John G. Roberts, a conservative Republican appointed by a conservative Republican President, George W. Bush, has appointed every judge currently sitting on the FISA Court. (That's Chief Justice Roberts, not former President Obama.)
  • The FISA Court judges have maximum 7 year terms; John Roberts has been Chief Justice for more than 12 years; so every one of the FISA Court judges were appointed while Roberts has been Chief Justice. And since it is the Chief Justice--and not the President--who appoints those judges to the FISA Court....
  • The 11 FISA Court judges are selected from among the judges sitting on other federal courts--i.e., the district (trial) courts or circuit (appeals) courts. All of those judgeships are presidential appointments. So, the FISA Court judges selected by the Chief Justice had all been previously appointed to some other federal court by some President. 
  • The 11 current FISA Court judges had been appointed to their district or circuit court positions by several different presidents. (Not all or 10 out of the 11--or even a majority--by Obama.)
  • In fact, a plurality of the FISA Court judges--5 out of the 11--had been appointed to their federal court judgeships by President George W. Bush: Rosemary M. Collyer (the Presiding Judge), Claire V. Eagan, Robert B. Kugler, Michael W. Mosman, and F. Dennis Saylor IV.
  • One had been appointed to her federal judgeship by President George H. W. Bush: Anne C. Conway.
  • One had been appointed by President Ronald Reagan: Raymond J. Dearie.
  • That's 7 out of the 11 FISA Court judges--more than a majority--were appointed to their federal judgeships by Republican Presidents. (Need I repeat, not by Democratic Obama.)
  • Two of the FISA Court judges had been appointed to their federal judgeships by President Barack Obama: James E. Boasberg and Rudolph Contreras. (That's 2--not 10--out of 11.)
  • And, finally, two had been appointed to their federal judgeships by President Bill Clinton: James P. Jones and Thomas B. Russell.
To summarize:
  • All 11 of the FISA Court judges were appointed by Republican Chief Justice Roberts.
  • 7 of the 11 had been appointed to the federal bench by Republican Presidents.
  • 2 of the 11 by President Obama.
[Here's the link to the FISA Court's website:]

Finally, a few additional points about that court and its function. First, it was established in 1978 under the Foreign Intelligence Surveillance Act (FISA). Congress enacted that law and established the FISA Court in order to protect against the kind of political abuse of intelligence surveillance that had recently been engaged in by the Nixon administration.

Second, the specific protection provided by the law is the requirement that the federal government must obtain "approval" from the FISA Court before undertaking "electronic surveillance, physical search, and other investigative actions for foreign intelligence purposes" within the United States.

Third, to obtain that "approval"--or warrant--from the FISA Court, the government must satisfy the 4th Amendment requirement of probable cause. Hence, the government must show that there are reasonable grounds to believe that the particular person to be surveilled may be involved in particular criminal activity. The requirement of constitutional probable cause is to help insure that there is some bona fide justification for the surveillance. That is, to help insure that the surveillance is neither political "dirty tricks" nor a "witch hunt" nor any other arbitrary fishing expedition. But neither is proof positive of criminality required; just reasonable grounds. That's the Constitution's 4th Amendment standard.

The point of all this is that regardless of what is being spread or reported or argued or imagined--whether by partisans or extremists or ignorants, and no matter the political or ideological stripe--about the FISA Court and the granting and renewing of warrants in the Russia investigation, there actually are some facts to be kept in mind to make some sense out of the din. Before the FBI obtained authorization (a warrant and renewals of that warrant) to conduct electronic surveillance in the Russia investigation, it had to persuade a judge or judges of the FISA Court--all of whom were appointed to that court by Chief Justice Roberts (who in turn had been appointed by President George W. Bush)--that their were reasonable grounds, credible bases, for conducting that surveillance.

Nevertheless, there are those who choose to believe that the FBI which sought the authorizations to conduct the surveillance was corrupt. That the FISA Court which granted the authorizations was also corrupt. And that the entire Russia investigation is a corrupt fraud. Unfortunately, such chosen conspiratorial beliefs, with or without any basis in fact or logic, are all too common in today's political and cultural climate.

And if memory serves me correct about another time of political and cultural turmoil, nearly half a century ago, there was a similar refusal to accept reality by a sizable chunk of the public, and it persisted right up until President Nixon resigned from the Watergate scandals. And even thereafter.

To be sure, it may well be that our current President is not guilty of any actual criminal misconduct as Nixon was. But it cannot be denied that there is a considerable amount of nonsense, blind disbelief, and utter disingenuousness being propagated in the defense of President Trump at all cost. The misinformation about the FISA Court, as well as the willful or ignorant spreading of that misinformation, is but a symptom of what has made intelligent public debate on important national issues so difficult.

Hopefully, this post has now dispensed with at least a little bit of that nonsense for those who are willing to accept the facts.

For additional discussion of the FISA Court and questions about the warrants obtained in the Russia investigation, here's the link to my interview this past Monday, Feb. 2, on Fred Dicker's Focus on The State Capitol!