LITTLE ROCK — THERE may or may not be a judge, if he is a judge, from Arkansas, if there is such a state, who might or might not have just been appointed to lead a federal court dubbed FISA. If it exists. Which we doubt.
There are some capable federal judges who live in Arkansas, and he’s one of them, but he’ll go unnamed here because he was already in the paper last week, on page 1B no less. Rumor has it that the chief justice of the U.S. Supreme Court—The Hon. John Roberts, of Washington, D.C.—has appointed this judge to something called the U.S. Foreign Intelligence Surveillance Court of Review. And, boy, if it’s half as scary as its name, we don’t want to know much more about it. If it exists. We know it’s been nicknamed the spy court.
(Hey, what a country. Its top-secret court gets Page 1 coverage. This can’t be Amerika yet.)
When asked how busy his work keeps him on this super-secret court, our friendly judge/neighbor/spook was quoted as saying: “I’m not at liberty to say.”
When asked how his new job would affect his day job on another appellate bench, he said: “I’m not at liberty to say.”
We’ll take that as he’s not at liberty to say. And he wasn’t joking. We’ve heard tell that federal judges on this alleged spy court do not have much of a sense of humor. Not to the best of their recollections, anyway.
If you believe the news accounts, this closed court was created in 1978 to try cases involving electronic spying. It was designed to handle procedures arising under the Fourth Amendment, the one that prohibits unreasonable searches and seizures. And these judges are supposed to decide whether our men and women with cloaks and daggers—or, these days, with mouse and laptop—have unreasonably searched or seized something.
You’ll doubtless hear little if anything in the coming years about the new leader of this court. (His cover name is “Buzz Arnold” for lack of a better pseudonym.) The court has released only two decisions to the public in 34 years.
And those decisions aren’t exactly household names like Roe or Dred Scott. Or even law-school-dorm names like Marbury or Citizens United. One of the court’s decisions is known as In Re Sealed Case No. 02-001. Catchy title.
It all figures:
If we’re going to have secret operations to defend the country in a largely secret war, we’ll need secret courts to judge their legality. There have to be adults making decisions on these matters. Well-informed, highly educated and experienced jurists who are able to balance the requirements of national security with civil liberties. And this Buzz Arnold sounds like a good fit for the court—an experienced judge with a record of being sensitive to individual rights. Which figures for a Republican of libertarian bent.
All of which explains how it comes about that an Arkansawyer will be leading this court’s own court of review. That is, if it exists.
EVEN IN the close-to-hysterical days immediately following September 11, 2001, there was a debate in the country, and especially in Congress, about this new legislation coming out of the Bush administration called the Patriot Act. Was it a necessary safeguard against a new and deadly enemy, or a threat to American liberties, neither of those or both?
It may have been none other than the irrepressible Newt Gingrich who, in one of his more rational moments, made the best argument for the Patriot Act: If there’s another successful sneak attack on this country, he warned, you’re not going to believe the clamor that’ll be heard for a lot more surveillance and for a lot fewer rights in this country.
People can demand some scary things when they’re scared. For example, an order commanding the removal of all Americans of Japanese ancestry, U.S. citizens or not, to internment camps deep in the interior. (It’s happened here before. Remember?)
Better that we pass the Patriot Act and give our G-men new powers than risk steps far more intrusive in the future. It was a powerful argument, among a number of others. And the Patriot Act passed, complete with safeguards like courts sworn to both keeping state secrets and upholding American liberties.
The good old ACLU was quoted as disapproving of the court’s secret sessions. Which is fine. That’s just what an American Civil Liberties Union is for. But as the Honorable Buzz put it, “There are facts in these cases that, if made public, would jeopardize national security.”
That’s enough for most of us. Let these mysterious courts both protect American liberties and Americans’ safety. Along with who knows how many other Americans in uniform, out of uniform, behind a desk or in judicial robes, operating drones or staked out in rusty vans with no air conditioning—just with a tape recorder and a phone tap. That is, if such courts actually exist. Which we doubt. At least publicly.
Privately, we’ll sleep better tonight knowing all of these good people are guarding us. And that one of them is The Hon. Morris S. Arnold. If he exists.
Editorial, Pages 76 on 05/27/2012