Hidden Hands: U.S. Spy Court Judges

The proceedings of the federal court that rules on the government’s requests to eavesdrop on foreign terrorists take place in total secrecy in a windowless room in Washington. Established by the Foreign Intelligence Surveillance Act of 1978, the court hears one side of the case only—the government’s. The judges almost never turn down the requests, prompting criticism that it’s little more than a rubber stamp for the administration. That’s untrue, says Steven Aftergood, who directs the Federation of American Scientists Project on Government Secrecy. “These judges are not hacks. I think they do a serious job with the tools that they are given,” he says. “It’s just that the framework is peculiar and problematic.”

That became clear on Aug. 21, when the Obama administration disclosed the court had reprimanded the National Security Agency for misleading the judges. On three occasions the NSA had misrepresented the scope of its espionage, the court said, and violated the Constitution by collecting e-mails of Americans who weren’t suspected of terrorism. It’s hard to evaluate whether the judges have real authority to keep spy agencies in check. Lawmakers must ultimately decide whether the court has enough power, Aftergood says. “It’s an occasion for Congress to ask itself, ‘Is this what we had in mind?’”

The life of a FISA court judge:
1. U.S. Supreme Court Chief Justice John Roberts picks the 11 judges from federal district courts around the country.
2. All judges don’t rule on every case. Only one is on duty at a time.
3. They rotate to Washington every 11 weeks for a one-week shift, serving a single seven-year term.

Don’t like the court’s ruling?
1. If a FISA judge makes a decision that a spy agency—or a corporation ordered to turn over data to the government—doesn’t agree with, they can file an appeal with the Foreign Intelligence Surveillance Court of Review.
2. The three-judge panel hasn’t had much work. There are only two known cases when it’s been called on to issue a ruling. In both, the review court sided with the government and allowed the spying to proceed.

Meet the Judges:

Reggie Walton
Presiding Judge
Washington, D.C. Federal judge since 2001
FISA term ends 2014

Presided over both of Roger Clemens’s perjury trials

AP Photo
James Zagel
Illinois, Northern District
Federal judge since 1987
FISA term ends 2015

Former director of the Illinois State Police who penned a 2002 crime novel, Money to Burn, about a $10 million heist at Chicago’s Federal Reserve Bank

Mary McLaughlin
Pennsylvania, Eastern District
Federal judge since 2000
FISA term ends 2015

AP Photo
Thomas Hogan
Federal judge since 1982
FISA term ends 2016

AP Photo
Susan Webber Wright
Arkansas, Eastern District
Federal judge since 1990
FISA term ends 2016

Presided over the Paula Jones sexual harassment case against President Clinton, whom she later held in contempt of court for declaring, in a sworn deposition, that he hadn’t had sexual relations with Monica Lewinsky

AP Photo
Martin Feldman
Louisiana, Eastern District
Federal judge since 1983
FISA term ends 2017

Dennis Saylor IV
Federal judge since 2004
FISA term ends 2018

Rick Kopstein/NY Law Journal
Raymond Dearie
New York, Eastern District
Federal judge since 1986
FISA term ends 2019

Overseeing the U.S. government’s case against Najibullah Zazi, a Colorado man who pleaded guilty to conspiracy in a plot to attack the New York subway system

Claire Eagan
Oklahoma, Northern District
Federal judge since 2001
FISA term ends 2019

AP Photo
Rosemary Collyer
Federal judge since 2002
FISA term ends 2020

Michael Mosman
Federal judge since 2003
FISA term ends 2020

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