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Who's approving those wiretaps on your phone?
Released 27 May 2009  By Chris Kromm - Facing South

Who's approving those wiretaps on your phone?

Chris Kromm - Facing South

With all the hot debate over government wiretapping in recent years, it was surprising to see that few in the media reported on big changes this week at the Foreign Intelligence Surveillance Court -- the group of federal judges that authorize electronic eavesdropping and physical searches of suspected terrorists, including U.S. citizens.

The Court was created in 1978 by the Foreign Intelligence Surveillance Act, or FISA. The number of judges on the panel was increased from seven to 11 under the 2001 U.S. Patriot Act. In 2008, the FISA court approved over 2,000 surveillance "applications."

On May 18, Judge Kollar-Kotelly -- who has presided over the court since 2002 -- stepped down and was replaced by Judge John D. Bates, who had been appointed in April by Supreme Court Justice John Roberts.

Who is John D. Bates? A staunch Republican, he first came to fame as Deputy Independent Counsel to Whitewater investigator Ken Starr, where he -- in Sen. Patrick Leahy's words -- wanted open access to "the dresser drawers of the White House."

After being appointed to the Foreign Intelligence Surveillance Court, he was one of the judges who authorized the expansion of the Bush administration's domestic spying program.

Other notable rulings from Bates (h/t Think Progress):

- In December 2002, Bates protected the Bush administration by narrowly dismissing a lawsuit filled by the U.S. Comptroller General David M. Walker against Cheney. Walker "wanted Mr. Cheney to reveal the names of industry executives who helped the administration develop" its energy policy. Bates argued turning the records over to Walker "would hobble an administration's essential, legitimate ability to receive frank information and advice."

- As a federal district judge, in 2007 Bates "dismissed a lawsuit filed by former CIA officer Valerie Plame and her husband [Joe Wilson] against Vice President Cheney and other top officials over the Bush administration's" retaliatory leak of Plame's identity.

On the other side of the coin, this past April Bates ruled that 600 prisoners detained at the U.S. Bagram air base in Afghanistan could appeal to U.S. courts. In his ruling on lawsuits brought on behalf of four men who had been held at the CIA "black site" at Bagram for six years without trial, Bates wrote "[C]onfinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government."

In a bizarre twist, the Obama Department of Justice swiftly moved to appeal Bates' ruling -- saying that allowing the Bagram prisoners to challenge their detainment in U.S. court "would divert the military's attention and resources at a critical time for operations in Afghanistan, potentially requiring accomodation and protection of counsel and onerous discovery."

(UPDATE: On May 21 Judge Bates also ruled against the Obama administration on who can be legally detained, saying that mere support for Al Qaeda is not sufficient basis for detention. But he also said that those who do fit the bill can be legally detained "indefinitely.")

The FISA court also gained two new members:

- Judge Susan Webber Wright, a U.S. District Court Judge for Eastern Arkansas appointed by the first President Bush. Wright famously dismissed Paula Jones' sexual harassment lawsuit against President Clinton, although also ruled against Clinton in the Whitewater case, imprisoning Susan McDougal for refusing to answer questions.

- Judge Thomas F. Hogan, a Reagan-era appointee to the U.S. District Court for the District of Columbia, who most recently was involved in delaying 114 habeas cases involving Guantanamo detainees.

The full list of FISA court judges can be found here.

What does it mean for the future of government surveillance and civil liberties? All three have a decidedly conservative cast -- suggesting there will be little departure from the FISA court's direction over the last eight years.

Interestingly, a new report from Congress suggests that Washington may be shifting the focus of its surveillance programs from FISA to the FBI. The number of FISA surveillance applications approved by the court dropped slightly from 2,370 in 2007 to 2008 to 2,083.

Meanwhile, the FBI approved 24,744 number of "national security letter" requests targeting 7,225 U.S. persons in 2008. That was a dramatic increase from 2007, when the FBI made 16,804 requests targeting 4,327 U.S. persons.


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