America’s Secret Surveillance Court: What the Public Needs to Know

Perhaps the best argument for reform of the Foreign Intelligence Surveillance Court is the lobbying by Chief Justice John Roberts through his spokesperson, Judge John Bates, against any changes in its operations. 

Judge Bates is a former chief judge of the secret court that rules on the electronic surveillance practices of the National Security Agency and other United States intelligence agencies.  He was designated by Justice Roberts to serve in that post and now Justice Roberts has called on him to speak on behalf of the judicial branch of the United States government.  There is no indication, however, that Justice Roberts consulted his fellow members of the federal judiciary in choosing Justice Bates for this new role or in determining the positions that Justice Bates should espouse.

Apparently, Justice Roberts and Judge Bates think that everything about the way in which the Foreign Intelligence Surveillance Court operates is just fine.  They oppose the appointment of an independent public advocate for privacy to take part in the Court’s secret proceedings.  It is sufficient, in their view, that only the intelligence agencies should be represented.  They oppose greater public disclosure of court rulings because we, the public, would be confused if we were informed about the rationales for the Court’s decisions. 

Also, they want to maintain the Chief Justice’s sole power to choose which federal judges will sit on the secret court to which ten of the eleven members, like Justice Roberts and Judge Bates, are appointees to the federal judiciary by Republican Presidents.  It would be a bad idea in their view, for each of the chief judges of the country’s Courts of Appeal to designate one member of the Court. And so on.

What has apparently escaped Chief Justice Roberts and Judge Bates is that what we have found out about National Security Agency practices as a result of the disclosures by Edward Snowden has been disturbing to many Americans and has badly damaged the reputation and standing of the United States internationally.  Reforms are needed urgently.

The positions espoused by Justice Roberts and Judge Bates contradict some of the fundamental principles of the American approach to justice.  We are committed to the adversarial system in part because we believe it is more likely that justice will be done if those making decisions are exposed to the arguments both for and against particular positions. We are committed to public disclosure of opinions supporting the rulings by judges in part because we believe that subjecting those opinions to discussion and criticism plays a crucial role in improving the quality of judicial decision-making.  Also, it provides an opportunity to those who are dissatisfied to advocate changes in the law. 

We are committed to a federal judiciary made up of appointees by presidents with differing views in part because we don’t accept that only one political party has a monopoly on judicial wisdom.  Yet the practical consequence of vesting the sole power to choose the members of the secret court in the Chief Justice is that only judges of the favored political affiliation are chosen.

Many Americans know that the National Security Agency’s unexplained practice of listening in on the phone conversations of foreign leaders such as President Dilma Rousseff of Brazil and Chancellor Angela Merkel of Germany has caused international outrage.  What is less well known, however, is how the revelations of NSA disregard for privacy are contributing to a perception of the United States as a country in which rights are not respected. 

Even though the United States has always had a checkered record on rights, both in its practices at home and its policies internationally, it was widely seen during much of the twentieth century as the champion of liberty in opposition to the totalitarian ideologies of the era. That perception was crucial in prevailing in those struggles. More recently, however, practices such as torture at Abu Ghraib, “enhanced interrogation” of terrorism suspects, long term detention without trial and targeted killings in regions other than war zones have badly sullied the American image. 

American data gathering on the citizens of other countries is contributing greatly to the view that our government simply doesn’t care about rights. The picture that is emerging does not serve the interests of the United States.

Improving the practices of the Foreign Intelligence Surveillance Court, by itself, will not undo the damage the United States has done to itself by the disregard for rights in its electronic surveillance practices.  Yet it would be a signal that a concern for rights still has some capacity in the United States to secure reforms.  It would be an important step in the right direction.