Sen. Richard Blumenthal went to Harvard Law School Thursday to advocate for the legislation he has proposed to modify the secret courts that are charged with regulating America’s surveillance programs.
His preposed reforms to the Foreign Intelligence Surveillance Act Court “are solutions that protect and defend the Constitution,” he told listeners at the nation’s oldest continuously operating law school, alma mater of President Barack Obama, five of the nine Supreme Court justices and seven sitting senators. (Blumenthal himself got his law sheepskin from Yale, although his bachelor’s degree came, magna cum laude, from Harvard College.)
Blumenthal’s two FISA reform bills would create an advocate with the power to argue on behalf of the right to privacy of the American people, and also change the way the judges on the court are selected.
“A special advocate whose client would be the Constitution” would ensure privacy concerns are considered, he said. “And when the court has turned down just 11 of the roughly 34,000 government requests presented to it, the public has the right to ask whether the deck is stacked against civil liberties.”
He pointed out that at present, the FISA Court judges are all selected by the Chief Justice of the Supreme Court. John Roberts, the current chief justice, has picked the 11 current judges. Ten of the 11 were appointed to the bench by Republicans andabout half have served previously in the executive branch of government before being nominated to the bench.
Blumenthal was quick to say that does not automatically mean bias; he mentioned that he had clerked for Republican-appointed judges (including Supreme Court Justice Harry Blackmun) who have “as much compassion for criminal defendants as any Democrat.” But he saidthe potential and perception of bias argue for a different selection process. His legislation would empower chief judges in each of America’s federal Circuit Courts of Appeal to select judges, assuring geographical and ideological diversity.
Blumenthal said that even Rep. James Sensenbrenner, the Republican who wrote the Patriot Act, has said he does not believe the act authorizes data collection as broad as what has been reported recently. “Needless to say, if the very people who write our public laws cannot know what they authorize, there is a problem of democratic accountability,” the Connecticut Democrat said.
“When information on the scope of federal surveillance efforts began to come out, President Obama said that the American people needed to have a debate about the balance between liberty and security in a free society. He was right,” Blumenthal said. “But no single group of Americans can produce a solution designed to last for the ages. What we can do _ what we must do _ is design a set of institutions that we can trust to apply timeless principles. … The FISA Courts as presently constructed do not meet that test. It is time to build courts that do.”