Does it matter that a black judge leads America’s secret court?

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Who would have known that a black judge is in charge of America’s “secret” court?

Perhaps it was a secret. In any case, Reggie Walton, an African-American, is presiding judge of the Foreign Intelligence Surveillance Court.

Is this a good thing, that is, to have a black jurist in such a high position? Does it matter, and should we care?

The power of the court

First, a look at the court itself.  The Foreign Intelligence Surveillance Court (FISC) was established under the Foreign Intelligence Surveillance Act of 1978 (FISA).

According to the Federal Judicial Center website, FISA “authorized the Chief Justice of the United States to designate seven federal district court judges to review applications for warrants related to national security investigations.”  In 2001 the Patriot Act expanded the court to eleven.  At least three of the judges must live within 20 miles of the District of Columbia.  Further, the judges have terms of up to seven years, and review warrants.

The Electronic Privacy Information Center also notes that the FISC can “hear applications for and grant orders approving electronic surveillance” and “physical search[es]” for the “purpose of obtaining foreign intelligence information” on foreign citizens in the U.S.

At an FISC hearing, the government is not required to show evidence of criminal activity or of probable cause justifying a search warrant for foreign targets.  Rather, the feds only need show the target of the spying is a foreign power or its agent.  In the case of an American citizen or resident alien, the Attorney general would certify that the target may be involved in the commission of the crime. And because everything is in secret, the target of the surveillance does not have the opportunity to appear before the hearing or even know it is being targeted.

An enemy of the ‘liberal establishment’

The court, which approves government spying programs, approved the surveillance operations revealed by Edward Snowden, the former contractor for the National Security Agency.  Snowden leaked the NSA programs that have collected massive amounts of data on Americans’ telephone calls and internet activity.  The American Civil Liberties Union has asked the court to release its opinions on the phone surveillance program, a request President Obama wants FISC to reject.

Since that time it was learned the NSA even snooped on the European Union.  Now that’s a scandal.

As for Judge Reggie B. Walton, due to the secrecy of the FISC, we cannot possibly know the full extent of his work on the court. However, we do know he was nominated to the U.S. District Court for the District of Columbia by George W. Bush, and took his seat in 2001.  He complained that the “liberal establishment” attacked him for being a registered Republican and Reagan appointee.

In 2007, Chief Justice John Roberts tapped Walton for the FISC, and made him presiding judge last February.  Since Walton arrived at FISC, the secret court has greatly expanded the ability of the federal government to spy on U.S. citizens domestically and overseas.