Who's approving those wiretaps on your phone?
With all the hot debate over government wiretapping in recent years, it was surprising to see that few in the media reported on big changes this week at the Foreign Intelligence Surveillance Court -- the group of federal judges that authorize electronic eavesdropping and physical searches of suspected terrorists, including U.S. citizens.The Court was created in 1978 by the Foreign Intelligence Surveillance Act, or FISA. The number of judges on the panel was increased from seven to 11 under the 2001 U.S. Patriot Act. In 2008, the FISA court approved over 2,000 surveillance "applications."
On May 18, Judge Kollar-Kotelly -- who has presided over the court since 2002 -- stepped down and was replaced by Judge John D. Bates, who had been appointed in April by Supreme Court Justice John Roberts.
Who is John D. Bates? A staunch Republican, he first came to fame as Deputy Independent Counsel to Whitewater investigator Ken Starr, where he -- in Sen. Patrick Leahy's words -- wanted open access to "the dresser drawers of the White House."
After being appointed to the Foreign Intelligence Surveillance Court, he was one of the judges who authorized the expansion of the Bush administration's domestic spying program.
Other notable rulings from Bates (h/t Think Progress):
On the other side of the coin, this past April Bates ruled that 600 prisoners detained at the U.S. Bagram air base in Afghanistan could appeal to U.S. courts. In his ruling on lawsuits brought on behalf of four men who had been held at the CIA "black site" at Bagram for six years without trial, Bates wrote "[C]onfinement of the person, by secretly hurrying him to jail, wherehis sufferings are unknown or forgotten, is a less public, a lessstriking, and therefore a more dangerous engine of arbitrarygovernment."
In a bizarre twist, the Obama Department of Justice swiftly moved to appeal Bates' ruling -- saying that allowing the Bagram prisoners to challenge their detainment in U.S. court "would divert the military's attention and resources at a critical timefor operations in Afghanistan, potentially requiring accomodation anda U.S. District Court Judge for Eastern Arkansas appointed by the firstPresident Bush. Wright famously dismissed Paula Jones' sexualharassment lawsuit against President Clinton, although also ruledagainst Clinton in the Whitewater case, imprisoning Susan McDougal forrefusing to answer questions.
- Judge Thomas F. Hogan, a Reagan-era appointee to the U.S. District Court for the District of Columbia, who most recently was involved in delaying 114 habeas cases involving Guantanamo detainees.
The full list of FISA court judges can be found here.
What does it mean for the future of government surveillance and civil liberties? All three have a decidedly conservative cast -- suggesting there will be little departure from the FISA court's direction over the last eight years.
Interestingly, a new report from Congress suggests that Washington may be shifting the focus of its surveillance programs from FISA to the FBI. The number of FISA surveillance applications approved by the court dropped slightly from 2,370 in 2007 to 2008 to 2,083.
Meanwhile, the FBI approved 24,744 number of "national security letter" requests targeting 7,225 U.S. persons in 2008. That was a dramatic increase from 2007, when the FBI made 16,804 requests targeting 4,327 U.S. persons.
On May 18, Judge Kollar-Kotelly -- who has presided over the court since 2002 -- stepped down and was replaced by Judge John D. Bates, who had been appointed in April by Supreme Court Justice John Roberts.
Who is John D. Bates? A staunch Republican, he first came to fame as Deputy Independent Counsel to Whitewater investigator Ken Starr, where he -- in Sen. Patrick Leahy's words -- wanted open access to "the dresser drawers of the White House."
After being appointed to the Foreign Intelligence Surveillance Court, he was one of the judges who authorized the expansion of the Bush administration's domestic spying program.
Other notable rulings from Bates (h/t Think Progress):
- In December 2002, Bates protected the Bush administrationby narrowly dismissing a lawsuit filled by the U.S. Comptroller GeneralDavid M. Walker against Cheney. Walker "wanted Mr. Cheney toreveal the names of industry executives who helped the administrationdevelop" its energy policy. Bates argued turning the records over toWalker "would hobble an administration's essential, legitimate abilityto receive frank information and advice."
- As a federal district judge, in 2007 Bates "dismissed a lawsuit filed by former CIA officer Valerie Plame and her husband [Joe Wilson] against Vice President Cheney and other top officials over the Bush administration's" retaliatory leak of Plame's identity.
On the other side of the coin, this past April Bates ruled that 600 prisoners detained at the U.S. Bagram air base in Afghanistan could appeal to U.S. courts. In his ruling on lawsuits brought on behalf of four men who had been held at the CIA "black site" at Bagram for six years without trial, Bates wrote "[C]onfinement of the person, by secretly hurrying him to jail, wherehis sufferings are unknown or forgotten, is a less public, a lessstriking, and therefore a more dangerous engine of arbitrarygovernment."
In a bizarre twist, the Obama Department of Justice swiftly moved to appeal Bates' ruling -- saying that allowing the Bagram prisoners to challenge their detainment in U.S. court "would divert the military's attention and resources at a critical timefor operations in Afghanistan, potentially requiring accomodation anda U.S. District Court Judge for Eastern Arkansas appointed by the firstPresident Bush. Wright famously dismissed Paula Jones' sexualharassment lawsuit against President Clinton, although also ruledagainst Clinton in the Whitewater case, imprisoning Susan McDougal forrefusing to answer questions.
- Judge Thomas F. Hogan, a Reagan-era appointee to the U.S. District Court for the District of Columbia, who most recently was involved in delaying 114 habeas cases involving Guantanamo detainees.
The full list of FISA court judges can be found here.
What does it mean for the future of government surveillance and civil liberties? All three have a decidedly conservative cast -- suggesting there will be little departure from the FISA court's direction over the last eight years.
Interestingly, a new report from Congress suggests that Washington may be shifting the focus of its surveillance programs from FISA to the FBI. The number of FISA surveillance applications approved by the court dropped slightly from 2,370 in 2007 to 2008 to 2,083.
Meanwhile, the FBI approved 24,744 number of "national security letter" requests targeting 7,225 U.S. persons in 2008. That was a dramatic increase from 2007, when the FBI made 16,804 requests targeting 4,327 U.S. persons.
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Chris Kromm
Chris Kromm is executive director of the Institute for Southern Studies and publisher of the Institute's online magazine, Facing South.