Wednesday, September 11, 2013
Stewart Baker suggests as much at The Volokh Conspiracy. In part:
I think a fair-minded judge encountering the issue for the first time in the courtroom would not likely say that NSA’s interpretations were disingenous or the result of bad faith or misrepresentation. Yet Judge Walton went there from the start.
I suspect that it’s because we’ve unfairly given FISA judges a role akin to a school desegregation master — more administrator than judge. Instead of resolving a setpiece dispute and moving on, FISA judges are dragged into a long series of linked encounters with the agency. In ordinary litigation, the judges misunderstand things all the time and reach decisions anyway, and they rarely discover all that they’ve misunderstood. The repetitive nature of the FISA court’s contacts with the agency mean that they’re always discovering that they only half understood things the last time around. It’s only human to put the blame for that on somebody else. And so the judges’ tempers get shorter and shorter, the presumption of agency good faith gets more and more frayed. Meanwhile, judges who are used to adulation, or at least respect, from the outside world, keep reading in the press that they are mere “rubber stamps” who should show some spine already. Sooner or later, it all comes together in a classic district judge meltdown, with sanctions, harsh words, and bad law all around.
If I’m right about the all too human frailties that beset the FISA court, building yet more quasijudicial, quasimanagerial oversight structures is precisely the wrong prescription. We’ll be forcing judges to expand into a role they are utterly unsuited for and we’ll put at risk our ability to actually collect intelligence. In fact, the more adversarial and court-like we make the system, the more weird and disorienting it will become for the judges, who will surely understand that at bottom they are being asked to be managers, not judges.