Currently, the Chief Justice of the United States is unilaterally responsible for appointing all Judges, both of the United States Foreign Intelligence Surveillance Court and of the United States Foreign Intelligence Surveillance Court of Review.
Since these courts were created in 1978, only three individuals have made appointments, Chief Justices Warren Burger, William Rehnquist and John Roberts. All three individuals held/hold an almost absolutist view of the Federal Government’s power to conduct surveillance if the two magic words “national security” are spoken or written. Of course, they are going to appoint Judges they know hold their views on the subject.
In the entire existence of the court, the government’s surveillance request was approved 99.997% of the time. A 0.003% rejection rate.
FISC & FISCoR are a joke, a rubber stamp for the government.
I propose the following change.
I would increase the number of FISC Judges by 2, from 11 to 13. I would reduce the term of members of the court from 7 to 3 years, non-renewable. Instead of the Chief Justice appointing all the members, I would vest the Chief Justice with 1 appointment and I would vest the Chief Judge of each of the 12 geographic Courts of Appeals with 1 appointment each. The Chief Justice could pick an active or senior District Judge from anywhere in the country, each Chief Judge would make his pick from the active or senior District Judges within his Court of Appeals circuit.
This would ensure that the FISC has a diversity of judicial views, not the monolithic viewpoint of the Chief Justice. Additionally, the court would sit in three judge panels to hear cases, rather than a single Judge having jurisdiction.
As for the United States States Foreign Intelligence Surveillance Court of Review, I would maintain the court at 3 judges and I would reduce terms from 7 to 3 years, non-renewable. I would vest the Chief Justice with the appointment of one Judge, chosen from among the active or senior Circuit Judges of the United States. I would vest the appointment of the second and third Judges in the Chief Judges of the 12 regional Courts of Appeals, starting with the 1st and 2nd Circuits, then the 3rd and 4th Circuits three years later and so forth. The Chief Judge would make his appointment from the active or senior Circuit Judges of his particular circuit.
This would have a similar effect upon the FISCoR