Russell Wheeler on the Changing Composition of the FISC

Chief Justice John G. Roberts, Jr. has designated two new members of the eleven-member Foreign Intelligence Surveillance Court (FISC), which Congress created in 1978 to act on government applications to undertake national security investigations, principally domestic surveillance. Congress directed the chief justice, alone, to designate sitting federal district judges to serve on the FISC for unrenewable seven-year terms, in addition to their regular judicial duties. The FISC has been the object of debate about the costs and benefits of its largely non-adversary proceedings and its comparative secrecy. Some have also charged that its membership’s preponderance of Republican appointees and former prosecutors have made it less likely to question surveillance requests rigorously, and more likely to stress national security over privacy in overseeing the legality of surveillance activities. Last June, I published a Lawfare Research Paper Series analysis of FISC’s composition from various perspectives and assessed possible links between designees’ appointing party and prosecutorial experience and FISC decisions. Such links are hard to establish. But optics are important to the FISC’s credibility; even if it is not ideologically oriented, it may appear so if it is dominated by appointees of one political party, or by former prosecutors. My goal in this short post is not to rehash that comparatively lengthy analysis but rather, my objectives are to highlight some major aspects of the FISC’s composition when the two new designees become members next month and to update my previous comparison of the designees of Chief Justices Burger, Rehnquist, and Roberts.