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Does the secret work of the FISA court need fixing?

Chief Justice John Roberts chose 10 out of 11 members of the FISA Court.
Chief Justice John Roberts chose 10 out of 11 members of the FISA Court.
Photo by Mark Wilson/Getty Images

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Yesterday, a former federal judge who served on the Foreign Intelligence Surveillance Act court testified about flaws in how the “secret court” operates. “Anyone who has been a judge will tell you a judge needs to hear both sides of a case,” said James Robertson. He said only the government’s side is represented effectively. The FISA court deals with classified information to make rulings on national security, including surveillance by the National Security Agency.

FISA and the NSA have been under scrutiny since whistleblower Edward Snowden released information about immense amounts of US government surveillance of Americans and abroad. A Washington lawmaker is proposing a fix for FISA. Rep. Steve Cohen (D - TN) says it shouldn’t just be the Supreme Court chief justice that appoints federal judges to the secret court. He wants congressional leaders to have power of appointment to ensure a more diverse political make-up. Currently, 10 of the 11 judges on the FISA court are Republican - all of whom were appointed by conservative Chief Justice John Roberts.

Why hasn’t the FISA court operated with a “devil’s advocate?” Would congressional oversight of FISA judges lead to politicization? Is there too much “groupthink” on the current court? Why does the government win the vast amount of cases before the FISA court?


Patrick Toomey, Fellow, ACLU National Security Project, American Civil Liberties Union

Richard Samp, Chief Counsel, Washington Legal Foundation