The Stars of the Star Chamber. Just who is the FISA court?

While fruitlessly scouring the banks of the Potomac river for the mythical beast known as Robust Congressional Oversight, our eyes were drawn by the light of an eleven star constellation often hidden in the night and fog of post-constitutional America. Behind the clouds of official secrecy the judges of the Foreign Intelligence Surveillance Court (FISA) cast their invisible light onto the lives of the entire global family, illuminating our every word for the watchful generals and vengeful angels of the national security state.

The President, while defending the NSA's varied and all-encompassing spy program, justifies the practices by claiming that judicial review legalizes them. Few people are familiar with this court, its makeup and operations, or the scope of its authority. The evidence it sees is classified and unchallenged. The decisions it makes are state secrets. It is obfuscation to term this courts function review and even greater obfuscation to pretend that it is a neutral guardian of human rights.

Eleven justices sit on the court. The justices are appointed for seven year terms. The appointments are made by the Chief Justice of the Supreme Court. All of the current justices were appointed by Chief Justice Roberts, who was appointed by George W. Bush in 2005. The appointments are not subject confirmation by Congress. Justice Roberts was appointed to the federal bench first in 2003. His prior government service included stints working under Attorney General Edwin Meese during the Reagan Administration and in the Office of the White House Counsel under George H.W. Bush. He is a loyal right-wing political appointee.

Five of the eleven judges on the court also owe their tenure on the federal bench to George W. Bush. Another, Susan Weber Wright, owes her seat to his father. Four more were appointed to the federal bench by Ronald Reagan. The lone Democrat appointee, Mary A. McLaughlin, served as Chief Counsel to the Senate Subcommittee on Terrorism, Technology and Government immediately prior to her appointment.

All the judges that sit on the FISA court maintain their day jobs on the federal bench, where they preside over trials and pass sentence. A defendant sentenced in these courts may face harsher penalties. According to statistics compiled by the Transactional Records Clearinghouse of Syracuse University, a public interest data project, over the last five years persons sentenced by the current crop of FISA judges receive a sentence that is 30% longer than the national average. Reagan appointee Thomas Hogan's average sentence is over 80% longer than the national average. Only one judge on the court passed out less time than the national average over the last five years.

Approval of a wiretap requires the confirmation of a single judge from the court. If the judge denies the request it may be appealed to a three judge review court. That court currently has only two judges. Since 2001 FISA court judges have turned down eleven warrants out of nearly 21,000 applications. A further 502 have been modified by the court. A large but unknown number of these warrants are of the blanket type issued to Verizon and first revealed by Edward Snowden.

The judges have a normal judicial workload in addition to their secret agent judge job. Thus each judge reviews about 158 warrant applications per year, nearly one every working day. The amount time is spent actually reviewing the warrants must be negligible unless the qualifications to be on the FISA court are to be a Republican, an activist judge, a truth in sentencing zealot and an insomniac.

Should a FISA judge not be immediately available to rubber stamp a request after a cursory examination, the Attorney General may declare an emergency and authorize the wiretap. He is then required to inform the court within 72 hours.

The court works off its own case law. That case law is classified. It can only be read by the judges and the secret policemen applying for the warrants. The sum total of this system is eleven conservative activist judges legislating secretly from the bench. The FISA court began as an attempt to reign in surveillance powers of the secret police state after the horrors of the Hoover-Nixon era. It has become a court of reactionary secrecy, the very kind of court the Constitution was written to exclude from society.

We are past the era of the Constitution and entered a time when the citizen is specifically precluded both knowledge of and recourse to the law, and therefore all has no means of defending or even expressing her or his human rights.