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

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

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.

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