A radical plan for shaking up the FISA court
Right now, all 11 judges are appointed by Supreme Court Chief Justice John Roberts. “That’s a lot of similar minds being put on there,” Cohen, a Tennessee Democrat, says. “We need to guarantee there’s a difference of opinion.”
Cohen’s FISA Court Accountability Act would try to ensure that difference of opinion by splitting the power to appoint the judges: The chief justice would get to name three of the 11 FISA judges, and each of the four congressional leaders would get two appointments each. The result would be a guaranteed mixture of Republicans and Democrats serving on the court — a far cry from the current situation, in which the court is made up of 10 Republicans and one Democrat.
Cohen’s bill would also require a 60 percent supermajority for any decisions made by the full court. “If the 60% threshold is good enough for the Senate, it should be good enough for the FISA Court,” he wrote to his House colleagues. And in the cases where the FISA court rules against the government and the government then appeals to the appellate court, Cohen’s bill would state that only a unanimous decision on the appellate court could overturn the FISA court.
Finally, Cohen’s legislation would require the FISA court to send a full copy of all decisions to the House and Senate Intelligence Committees, as well as declassified summaries of the decisions so that congressional staff without security clearances could review the documents.
There are more and more revaluations about how the FISA court has moved further and further away from what seems to have been authorized under the law. Getting it back on a sounder course will require active participation by both the courts and congress. The picture of congressional oversight that has emerged in recent weeks is one of a passive don't rock the boat attitude for the most part.
I think that the most encouraging thing about this bill is that it is a concrete attempt by a congressman to get the ball rolling. One of the problems with the present arrangements is that in the name of national security there has been a heavy concentration of power in the hands of just a few people. That is seldom a healthy development for democratic government.
Just having a more bipartisan representation on the court is not a great guarantee that there will be substantial change in its operation. After all we have had bipartisan oversight in congress and look at how much that has accomplished.
I wouldn't put much money on the prospects of this particular bill, but it is a recognition that things are wrong and need to be fixed.