A few questions about the FISA courts and CJ Roberts...

The FISA court has been in the news a great deal of late, and last night I seem to recall that during Roberts' confirmation hearing, one of the Dem senators asked him about the appointment process to the Court, and if Roberts, as CJ, would be willing to "consult" on nominees..

I've Googled the FISA Court, and can only find mention that the CJ appoints the FISA judges from the different appellate circuits, and therefore would assume that a change of stature would be required for the CJ to "consult" about future FISA appointments? Thus a promise to "consult" would be wrong, and illegal.

All of the relevant exchanges in the hearings are below. The ultimate questions involve the extent of 4th amendment protection, and how will our system of government regulate the balance between being "secure in our homes" and being "secure from threats."

The rubber meets the road at the point of how far we permit law enforcement to proceed without judicial oversight.

IMO, this is just another area where law is emerging, and it makes sense for law to emerge as we are in a new kind of struggle. Another area relates to "access to Article III courts by Gitmo detainees" (shorthand for a more complex perimeter). I'm sure there are other areas on the limits of government that haven't touched our minds yet; but there is no doubt in my mind that we are headed in the direction of MORE government. And while that is going on, most of the discussions (even in Congress) are reduced to oversimplified soundbite form. Aarrrrgh!!

DURBIN: Your position as Supreme Court justice, chief justice, gives you extraordinary power: to appoint 11 judges on the FISA court, which has the authority to issue warrants for searches and wiretaps of American citizens, all the way to the establishment of rules of criminal and civil procedure. ...
DEWINE: The bad news is, it's the first round.
Judge, I want to ask you about one of your more important, probably least understood -- not by you, but least understood by the public -- role, if you are confirmed as the chief justice. And that is your job to appoint the members of the FISA court.
Judge, as you know, in 1978, Congress passed the Foreign Intelligence Surveillance Act. This law, of course, set up the FISA court.
As you well know, this is the court that our intelligence agents go to when they want to obtain wiretaps or search warrants against terrorists and foreign spies -- 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.
And, Judge, because it's a court that meets in secret, it doesn't gave the public scrutiny, it doesn't have the glare of publicity and, quite candidly, does not have much oversight.
So I would like to know, besides what's in the statute -- the statute sets out that it will be your job to select the 11 judges who sit on the FISA court, the three judges who sit on the FISA court of review. There's certain guidelines in the statute.
But besides that, I wonder if you could tell us what your criteria will be when you select these men, these women, who will serve on the court. And I wonder if you could give me your personal assurance that this will be something that will be very important to you, that you will take a hands-on approach and that you will be very personally involved in.
ROBERTS: I appreciate that, Senator. And if I am confirmed, that is something that I will address and take very seriously.
I think, as in many areas, my first priority is going to be to listen, to learn a little bit more about what's involved.
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.
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.
Again, to be perfectly honest, it is a very unusual situation, and I do think it places a great premium on making sure that the best qualified people for that position are selected. ...
LEAHY: Let me switch gears again.
Senator Grassley is not here right now, and Senator Specter and I have worked for several years to shed some light on the FISA court, the foreign intelligence court.
A lot of Americans are affected by their decisions. Most Americans don't know how it works, don't know whether their civil liberties are being curtailed or violated. We added some sunshine provision. The attorney general now submits a biannual report to four congressional committees, details how many people are the target of electronic surveillance and so on. It's still inadequate in the fact it doesn't get public reporting.
If you're confirmed as chief justice, you're the overseer of the FISA court. Most people don't even look at that role of the chief justice. I think it's probably one of the most important ones if you're going to talk about the liberties and how they're protected.
Would you be willing to work with members of Congress to add more transparency, or do you believe there's enough transparency in the work of the FISA court now?
ROBERTS: Senator, you said you think this is something most Americans aren't aware of. I suggest probably most judges aren't aware of...
LEAHY: Well, that's probably so.
ROBERTS: It is a specialized court. I will tell you when I became aware of it, it's a surprising institution. It's an unusual set-up.
LEAHY: Certainly different than what we think in our system of...
ROBERTS: That was exactly my reaction.
On the other hand, Congress, in setting up the court, obviously concluded there were reasons to do it that way.
I was asked a question about appointing the judges to it and my response was that, given the unusual nature of it -- very unusual nature, given the usual traditions of judicial processes -- that the people appointed to it have to be of the highest quality, undoubted commitment to all the basic principles, both of the need for the court and the need to protect civil liberties.
That I think is very important.
Beyond that, I would just tell you I don't know enough about the operations of the court at this point and how it functions to be able to make any representations about what I would do, other than that I certainly appreciate that it's an unusual establishment and in many respects doesn't have the sorts of protections that the normal judicial process has, and that I would be sensitive to those concerns.
LEAHY: And I'd hope -- my time is up. I apologize. But I'd hope that, if you are confirmed, that you might be willing -- and I think Senators Grassley, Specter, and myself could put together some suggestions -- at least keep an open mind on it.
ROBERTS: Certainly, Senator.
LEAHY: Because in an electronic age, in a digital age when more and more information is being pulled in on Americans that we sometimes don't even know about, it is frightening. We want security, but we want to be like -- as Benjamin Franklin said, a people who'd give up their liberties for security deserve neither. Thank you.

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