Topic: Appointing FISA Court Members
Senator: DeWine
Date: SEPTEMBER 13, 2005
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SPECTER: Senator DeWine?
DEWINE: Thank you, Mr. Chairman.
Judge, good afternoon.
ROBERTS: Good afternoon.
DEWINE: I guess the good news is that I represent halfway point.
SPECTER: On the first round.
DEWINE: The bad news is, it's the first round.
(LAUGHTER)
Judge, I want to ask you about one of your more important, probably least understood -- not by you, but least understood by the public -- role, if you are confirmed as the chief justice. And that is your job to appoint the members of the FISA court.
Judge, as you know, in 1978, Congress passed the Foreign Intelligence Surveillance Act. This law, of course, set up the FISA court.
As you well know, this is the court that our intelligence agents go to when they want to obtain wiretaps or search warrants against terrorists and foreign spies -- a very important court, a court that meets in secret, a court that deals with the most important national security matters that we have, really, in our country, but also a court it deals with our precious civil liberties.
And, Judge, because it's a court that meets in secret, it doesn't gave the public scrutiny, it doesn't have the glare of publicity and, quite candidly, does not have much oversight.
So I would like to know, besides what's in the statute -- the statute sets out that it will be your job to select the 11 judges who sit on the FISA court, the three judges who sit on the FISA court of review. There's certain guidelines in the statute.
But besides that, I wonder if you could tell us what your criteria will be when you select these men, these women, who will serve on the court. And I wonder if you could give me your personal assurance that this will be something that will be very important to you, that you will take a hands-on approach and that you will be very personally involved in.
DEWINE: Because really it is a question of the utmost national security. These are people who are going to make sometimes life and death decisions for our country.
ROBERTS: I appreciate that, Senator. And if I am confirmed, that is something that I will address and take very seriously.
I think, as in many areas, my first priority is going to be to listen, to learn a little bit more about what's involved.
I'll be very candid. When I first learned about the FISA court, I was surprised. It's not what we usually think of when we think of a court. We think of a place where we can go, we can watch, the lawyers argue, and it's subject to the glare of publicity. And the judges explain their decision to the public and they can examine them. That's what we think of as a court.
This is a very different and unusual institution. That was my first reaction. I appreciate the reasons that it operates the way it does. But it does seem to me that the departures from the normal judicial model that are involved there put a premium on the individuals involved.
I think the people who are selected for that tribunal have to be above reproach. There can't be any question that these are among the best judges that our system has, the fairest judges, the ones who are most sensitive to the different issues involved, because they don't have the oversight of the public being able to see what's going on.
Again, to be perfectly honest, it is a very unusual situation, and I do think it places a great premium on making sure that the best qualified people for that position are selected.
DEWINE: I appreciate your personal attention to that. I know how important you know it is, Judge.
And I would just add one more comment, that that court, as all courts do, but even more so, not only makes decisions, not only decides whether to issue the warrant or not, but it's the feedback that the Justice Department gets and the law enforcement agencies get that tells them what they can do and can't do. And that feedback is unbelievably important and it affects the intelligence operations in this country and is just vitally, vitally important.
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