This is why you have to know the players in the game, even in the judiciary. Supreme Court Chief Justice John Roberts came in for plenty of criticism that his appointments to America’s “spy courts” were all conservatives.
On Friday he named two federal judges appointed by Democrats to the Foreign Intelligence Surveillance Act courts. But they aren’t exactly liberals.
Judge Richard Tallman, a 9th U.S. Circuit Court of Appeals judge, was named to the FISA Court of Review, the appellate level of FISA. He is a Republican appointed by President Clinton in a deal made with conservative senators in 1996.
Tallman is a fair-minded and competent guy who is also a member of the conservative wing of the 9th Circuit. (Yes, the 9th Circuit has a conservative wing.) He was appointed to serve a seven-year term on the FISA court, which by the way he will do part-time. Tallman will continue to hear 9th Circuit appeals.
Roberts also named D.C. District Judge James Boasberg to the FISC court. His appointment will double the number of Democrats on the 11-judge FISA court, from one to two.
He was appointed to the federal bench in 2011 by President Obama and prior to that was a judge on the DC superior court and served as a federal prosecutor for five years as an Assistant U.S. Attorney in DC. He also will do double duty as a federal judge while serving his seven-year assignment on FISA.
The FISA court was created in 1978 by Congress to oversee law enforcement requests for surveillance warrants against suspected foreign agents in the U.S. The requests come most often from the National Security Agency and the FBI.
The requests are made in secret and the courts orders are largely secret.
It is also rare for FISA warrant requests to be turned down. From 1979 to 2004, just four of nearly 19,000 requests were denied.
In 2013, Edward Snowden leaked to reporters a top-secret order issued by the court that required a subsidiary of Verizon to provide a daily feed of all call records to the NSA, including domestic calls.