Newspaper article Pittsburgh Post-Gazette (Pittsburgh, PA)

Surveillance Court, Used to Secrecy, under Scrutiny

Newspaper article Pittsburgh Post-Gazette (Pittsburgh, PA)

Surveillance Court, Used to Secrecy, under Scrutiny

Article excerpt

WASHINGTON -- Wedged into a secure, windowless basement room deep below the Capitol Visitors Center, U.S. District Court Judge John Bates appeared before dozens of senators two weeks ago for a highly unusual, top-secret briefing.

The lawmakers pressed Judge Bates, according to people familiar with the session, to discuss the inner workings of the United States' clandestine terrorism surveillance tribunal, which Judge Bates oversaw from 2006 until earlier this year.

He reluctantly agreed to appear at the behest of the Senate Intelligence Committee chairwoman, Dianne Feinstein, D-Calif., who arranged the session after new disclosures that the court had granted the government broad access to millions of Americans' telephone and Internet communications.

The two-hour meeting on June 13 featuring Judge Bates and two top spy agency officials reflects a new and uncomfortable reality for the Foreign Intelligence Surveillance Court and its previously obscure members.

The public is getting a peek into a powerful and mostly invisible government entity. And it is seeing a court whose secret rulings in effect have created a body of law separate from the one on the books -- one that gives U.S. spy agencies the authority to collect bulk information about Americans' medical care, firearms purchases, credit card usage and other interactions with business and commerce, according to Sen. Ron Wyden, D-Ore.

Members of Congress from both parties are pursuing legislation to force the court's orders into the open and have stepped up demands that the Obama administration release at least summaries of the court's opinions. The court was created in 1978 to handle routine surveillance warrants, but critics say it is now issuing complex, classified, Supreme Court-style rulings that are quietly expanding the government's reach into the private lives of unwitting Americans.

Surveillance court judges are selected from the pool of sitting federal judges by the chief justice of the United States, as is required by the law that established the panel. There is no additional confirmation process. Members serve staggered terms of up to seven years.

The surveillance court is a different world of secret case law, non-adversarial proceedings and rulings written by individual judges who rarely meet as a panel.

Judges generally confer only with government lawyers, and out of public view. Yet the judges have the power to interpret the Constitution and set long-lasting and far-reaching precedent on matters involving Americans' rights to privacy and due process under the Fourth Amendment. And this fast-growing body of law is almost entirely out of view of legal scholars and the public. Most Americans do not have access to the judiciary's full interpretation of the Constitution.

All 11 of the current members were tapped by Chief Justice John Roberts. …

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