New FISA Court Appointees Are A Pro-Government Prosecutor And An Unknown Quantity

from the change:-the-slowest-and-most-unstable-element dept

Mon, Feb 10th 2014 4:03pm — Tim Cushing

Back in June of last year, as the Snowden leaks first began rolling out, we covered a Reuters story that helped explain exactly how the FISA court had become so compliant in its relationship with the NSA. Part of the problem was the appointees, selected by Supreme Court Chief Justice John Roberts, which were overwhelmingly Republican.

12 of the current 14 judges are Republicans and most were appointed by Republican presidents. The conservative majority naturally lent itself to George W. Bush's newly-minted, post-9/11 War on Terror. That so little consideration has been given to the American public's concerns is unsurprising, what with a slate of judges composed of prosecutors and enablers of questionable government behavior. The two newest faces, despite both being originally appointed to the bench by Democrat presidents, may do very little to change the overall makeup of the court.

Seattle-based 9th U.S. Circuit Court of Appeals Judge Richard Tallman joined the court of review for a term that started last month. Democratic President Bill Clinton appointed Tallman, a Republican, as a federal appeals court judge in 2000.

A former federal prosecutor, Tallman joined the 9th Circuit as part of a deal between Clinton and Republican senators. Tallman has developed a reputation as a smart, hard working judge who frequently sides with the government in criminal cases, said Rory Little, a Hastings College of the Law professor who regularly argues before the court.

"He certainly does not express suspicion of governmental action very often," Little said.

Tallman's appointment doesn't appear to address the "rubber stamp" problem. As you may remember from another post here at Techdirt, Judge Richard Tallman was one of four judges who dissented from the majority opinion which found that warrantless access to hotel and motel guest records by the LAPD was unconstitutional. His major objection was that the decision presumed the worst about the police department, while he was more inclined to presume the best.

The ordinance does not claim to alter the LAPD's constitutional responsibility to adhere to Fourth Amendment safeguards when making any demand for information," Tallman's dissent states. "We cannot presume that police have violated the Fourth Amendment without any facts with which to make that determination."

The major flaw in Tallman's argument is that the city's ordinance, as written, makes no requirement that the LAPD consider the constitutional implications of accessing the records without warrants. Instead, it merely granted them carte blanche access while simultaneously hitting motel/hotel owners with criminal charges if they challenged the LAPD's access.

Judging from his dissent, Tallman is a perfect fit for the NSA, which prefers its access to information warrantless, on demand and in bulk.

The other appointee, Judge James E. Boasberg, is a bit of a tougher read. On one hand, back in 2012, he shot down Judicial Watch's FOIA request for the Bin Laden death photos, ruling that national security interests outweighed the public interest. On the other hand, he denied the DOJ's attempt to withhold documents related to "Standard Operating Procedure 303," (the government's ability to deactivate wireless networks in case of emergency) which EPIC sought after San Francisco police shut down protestors' cellphone communications.

Boasberg, like many other FISA judges, was previously a prosecutor, but unlike many of the others, also has some experience with First Amendment issues, having spent some time as a civil litigator specializing in defamation law.

Boasberg will fill Judge Reggie Walton's seat, one of the only FISC judges to confront the NSA on its bad habits, sloppy collection techniques and deliberate misrepresentation of its efforts. With his limited track record in related areas, Boasberg could go either way. He's pushed back against the government before, and with some First Amendment trench experience, may be more amenable to considering constitutional implications.

This duo of government-company-man and a relatively unknown quantity isn't exactly the most heartening set of appointees, but if nothing else, it may indicate the Chief Justice John Roberts may be feeling the heat for packing the court with pro-government prosecutors and Republicans.

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Filed Under: fisa, fisa court, fisc, james boasberg, john roberts, richard tallman

14 Comments

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Skeptical Cynic (profile), 10 Feb 2014 @ 2:46pm

Yeah. FISA should be expected to be neutral, NOT
FISA is nothing but a GOV rubber stamp court. We all know it and they know it.
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That One Guy (profile), 10 Feb 2014 @ 4:23pm

So, two steps backwards, one maybe forward, joy, and I'm sure it's a total coincidence that the judge being shown the door is one of the very few from that group willing to stand up to the NSA and call them out on their actions.
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Devonavar (profile), 10 Feb 2014 @ 4:32pm

Richard Tallman?
Someone needs to hack in and add an 's' to the letter of appointment.

I think Richard Stallman could do some good as a FISA court judge.
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- Anonymous Coward, 10 Feb 2014 @ 6:07pm
  
  Re: Richard Tallman?
  That outcome would be hilarious.
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Anonymous Coward, 10 Feb 2014 @ 4:38pm

Tonight on the muppet show.
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d'Arc, 10 Feb 2014 @ 6:34pm

And the court went right to work and voided Verizon taps.

Did we see it before somewhere?
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Anonymous Coward, 10 Feb 2014 @ 8:31pm

I do not believe that it makes any difference if the justices are Democratic or Republican. Do not forget that LBJ started the active part of that Vietnam fiasco and that he was a Democrat.

What appears to make a big difference is if they are pro war and pro totalitarian or not.

For this it does appear that neither party is pro freedon and that both parties are equally pro totalitarian.

Ann Ryan was right be for yourself not for the pro totalitarianist.
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- Pragmatic, 11 Feb 2014 @ 5:44am
  
  Re:
  You do know that selfishness naturally lends itself to supporting totalitarianism, don't you?
  
  Given that the current crop of Ayn Rand enthusiasts are also some of the most vicious authoritarians, I can't say I believe she's right at all.
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btrussell (profile), 11 Feb 2014 @ 5:27am

How come sites block me because of my location, yet I have a huge black bar taking half of my screen asking me to call my US rep? My US rep is Stephen Harper. I don't think he can vote on your bills or your 'bamas.
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rapnel, 11 Feb 2014 @ 5:43am

.. In defense of the 4th I would think that judges would recognize that the amendment exists because these matters are subject to abuse. They can be easily and readily abused when access is granted to much more than would be required. In deferring to government these allowances are gains that will not be returned.

And here we are "evaluating" all but total access to the world's information. Inch-by-inch. Step-by-step.

Under the guise of security, awareness and the rule of law we stumble into the open arms of omnipotent enforcement.
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SpinDrift, 11 Feb 2014 @ 6:13am

D's good, R's bad...
Repeat, D's good, R's bad...and the sheep continue to walk towards the slaughter in docile fashion thinking they've got it sussed.
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Anonymous Coward, 11 Feb 2014 @ 6:53am

If you're going to stack the deck, why not do it in your favor?

It's also pretty obvious they don't want to have /any/ accountability anyway.
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Anonymous Coward, 11 Feb 2014 @ 7:57am

if Mother Mary was appointed, she wouldn't be able to get these 'judges' to act in a way that they should. all want to do the same thing, have an easy, quiet life, doing very little as far as their job is concerned, just giving the 'go ahead' to the security forces to screw the people however they like.
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Anonymous Coward, 11 Feb 2014 @ 8:35am

We should bomb Russia and China to force them to adopt our democracy (like secret courts, with secret evidence, with secret orders).
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