Judge Gertner on FISA court

Now retired from her position as United States District Judge in Massachusetts, Nancy Gertner, a law teacher at Harvard, has a fascinating take on the FISA court. See Judge Gertner’s views here.

I know, like and have great respect for Judge Gertner.  While our views are frequently quite different, what she has to say is always worth reading.  If nothing else, she is a plain-spoken realist.


2 responses

  1. I tend to agree with Judge Gertner on this; although my concerns center more on the secrecy aspect than on the premise that the judges are all conservatives.

    Even if that were true, and I confess I’d be more concerned were the judges all liberals (though not much more), my greater concern here would be on a mix of conservatives and liberals. In a national security environment, I think it’s more important that applicants for the requisite warrants get a consistent response rather than one that might vary from liberal judge to conservative judge.

    I had another question, though, stemming from the Fact Sheet that Clapper released:

    All FISA collection…is overseen and monitored by the FISA Court, a specially established Federal court comprised of 11 Federal judges appointed by the Chief Justice of the United States.

    It’s a Federal court whose judges are not vetted and approved by the Senate, as Constitutionally provided. They seem, then, not to be Article III judges. How, then can they be Federal judges when they’re sitting on this court?

    Eric Hines

  2. Dear Mr. Hines,

    Each of the judges are Article III judges. They come from different federal courts, and take on additional duties with the FISA court. Congress gave the Chief Justice the authority to make appointments to the court.

    All the best.


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