Chief Justice John Roberts: The hidden hand behind the surveillance state

Defenders of the National Security Agency's sweeping intelligence-gathering operations often turn to a seemingly unassailable argument: Every phone record and every byte of data that the NSA collects has essentially been approved by all three branches of government. That's one of the factors that makes the NSA scandal unique — there is almost zero disagreement within the government itself over the spying program's constitutionality and efficacy.

However, a closer look at the involvement of one of the branches — the judiciary — suggests that this consensus might not be as ironclad as once thought. A report by Charlie Savage at The New York Times reveals that the Foreign Intelligence Surveillance Court — the secret court that decides how far the government can go before its snooping violates the Constitution — may have something of a puppet master: Chief Justice John Roberts of the Supreme Court.

Roberts, Savage says, "has been quietly reshaping the secret court" by packing it with Republican-appointed judges, many of whom are former executive branch officials. Critics say Roberts' selections are more likely than other jurists to defer to the government when it says its domestic spying and data-mining are necessary to protect national security.

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Savage and other reporters have noted that Roberts has assigned all 11 of the court's judges, 10 of whom were originally appointed by Republican presidents. The numbers make the government's extremely high success rate at the court appear fishy — and it doesn't help that the secret court only hears one side, the government. Here is a brief excerpt from Savage's article:

The article explains that the court began expanding its role under Rehnquist, who died in 2005. During George W. Bush's first term, the surveillance court gave the administration permission to continue surveillance programs that once sidestepped the Foreign Intelligence Surveillance Act. Later, under Roberts, the court's powers expanded when Congress gave the government power to conduct surveillance without warrants on domestic soil (provided the targets were foreigners abroad), and the secretive court was tasked with setting rules for the program.

The effect Roberts has had on the court's decisions is debatable, says Margaret Hartmann at New York. Some say he's making the court more likely to rubber stamp administration requests; others contend it's natural for the government to have a high success rate, because it is not going to make a surveillance request without good reason. "Regardless," Hartmann says, "[Edward] Snowden's leaks have intensified calls to change how the secret court operates."

The question is what kind of system would work better. Blumenthal has proposed allowing the chief judges of the nation's 12 appellate courts to each appoint a judge to the FISC, in the hopes of fostering a diversity of legal opinion.

Gary Schmitt at The Weekly Standard says some lawmakers and legal scholars want to let security-cleared lawyers present arguments to the court against the government's requests.

Schmitt also argues that it's probably best to take the job out of the court's hands entirely, and give it to the intelligence committees in Congress.