Judge John G. Roberts, in the first round of questioning in his confirmation process to be Chief Justice of the United States, exhibited a cautious approach when confronted by Sen. Mike Dewine, R-Ohio, over the secretive Foreign Intelligence Suveillance Act (FISA) court.  The court, created in 1978 and modified in 2001 by the USA Patriot Act, reviews requests by the intelligence community to conduct national security-related surveillance, such as wiretaps, within the United States.  It therefore stands at a nexus where security abuts privacy, but also where Roberts himself would play a central role by appointing its members.

DeWine characterized the FISA court as “a very important court, a court that meets in secret, a court that deals with the most important national security matters that we have, really, in our country, but also a court it deals with our precious civil liberties.”[1]

DeWine pointed out that as Chief Justice Roberts would appoint the 11 judges on the FISA court, along with three judges on a FISA review panel that takes a second look at requests rejected by the 11-judge panel.  In addition to DeWine’s comments, it should be noted that the judges serve on the court for seven years (in addition also to holding life-time appointments as ordinary federal judges on federal district courts).

Roberts acknowledged the gravity of the matter and went on to declare:  “as in many areas, my first priority is going to be to listen, to learn a little bit more about what’s involved.[2]”

However, perhaps at the risk of telegraphing what his attitudes about the court would be, Roberts went on to express what his initial reaction had been to the FISA court, hinting at concern over the court’s secrecy and the special weight placed on who sat on it:

I'll be very candid. When I first learned about the FISA court, I was surprised. It's not what we usually think of when we think of a court. We think of a place where we can go, we can watch, the lawyers argue, and it's subject to the glare of publicity. And the judges explain their decision to the public and they can examine them. That's what we think of as a court.

This is a very different and unusual institution. That was my first reaction. I appreciate the reasons that it operates the way it does. But it does seem to me that the departures from the normal judicial model that are involved there put a premium on the individuals involved.[3]

Roberts apparently believes that with the lack of transparency ordinarily associated with a court of law in a democratic system, an important check on the FISA court lies in the care taken with appointing the judges:

I think the people who are selected for that tribunal have to be above reproach. There can't be any question that these are among the best judges that our system has, the fairest judges, the ones who are most sensitive to the different issues involved, because they don't have the oversight of the public being able to see what's going on.[4]

In the post-Sept. 11, 2001, world, how to handle secrecy has been one of the key issues with respect to security, law and democracy.  Transparency and accountability are linchpins of democracy and legal process, but concerns are voiced over prospects of revealing national security information or, whether directly or by inference, intelligence security sources and methods.  Terrorism provides a special challenge in that the traditional legal system functions not simply as a check on government power but also as a tool in the war on crime, including the war on terrorism, given that terrorism is a criminal act subject to legal prosecution.  One challenge presented is how to prosecute a case without treading upon any justifiable national security-related secrecy, and whether special steps can be taken to provide some secrecy while nevertheless honoring the requirements of due process.  Similar challenges face military entities conducting adjudicatory or quasi-adjudicatory functions, such as Combatant Status Review Tribunals reviewing a detainee’s status as an enemy combatant, or military commissions hearing prosecutions of detainees for war crimes.

It can be noted that in the case of the FISA court, a main focus of court action is to authorize covert surveillance for its own sake (as opposed to gathering evidence to serve as a basis for prosecution) but that the liberty interest in privacy is still a strong one.

As mentioned above, in circumspect language, Roberts noted his initial “surprise” over the secrecy of the court, acknowledged the existence of legitimate national security concerns needing to be addressed, acknowledged the gravity associated with the appointment of the court’s members, and expressed the desire to do much listening to reflect carefully on the matter. 

As will be noted in another writing, in separate questioning relating to the war on terrorism Roberts expressed the belief that the issue of effectiveness in the war on terror should be decided by other branches of government (i.e., the executive branch and Congress), but that his role as jurist would be to apply the rule of law.

Further Information:

Elizabeth B. Bazan, “The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions,” Congressional Research Service, 2004, Sept. 22, 2004, http://www.fas.org/irp/crs/RL30465.pdf

“Foreign Intelligence Surveillance,” 50 U.S.C. Chapter 36, http://www.law.cornell.edu/uscode/html/uscode50/
usc_sup_01_50_10_36.html

“Foreign Intelligence Surveillance Act Court Membership 2005,” http://www.fas.org/irp/agency/doj/fisa/court2005.html

“Text of John Roberts Hearing - 8,” AP, Sept. 13, 2005, http://sfgate.com/cgi-bin/article.cgi?file=/
n/a/2005/09/13/national/w145824D90.DTL&type=printable

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