The defenders of government surveillance have used the media’s fascination with personalities to turn attention onto leaker Edward Snowden and away from what he disclosed. What Snowden’s leak should prompt is a re-examination of the National Security Agency (NSA) and other national security agencies and the Foreign Intelligence Surveillance Court (FISA) that is supposed to authorize their activities.
Nancy Gertner, a former federal judge who teaches at the Harvard Law School, casts doubt on FISA’s. The court, whose members are appointed by Chief Judge Roberts, is stocked with conservatives, including Robert Vinson, who approved the NSA surveillance, and who earlier declared the Affordable Care Act unconstitutional. Its opinions are secret, and not subject to public debate.
Gertner, responding to a statement commending the FISA court, told a meeting in Washington, “As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced. Two reasons: One … The Fourth Amendment frameworks have been substantially diluted in the ordinary police case. One can only imagine what the dilution is in a national security setting. Two, the people who make it on the FISA court, who are appointed to the FISA court, are not judges like me. Enough said.”