Wednesday, September 11, 2013

 

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

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.
arallel Supreme Court’

As the New York Times reported, a court that was once limited to signing off on wiretaps has become a “parallel Supreme Court” with the ultimate authority on intelligence issues — not merely terrorism but cyber attacks, espionage and nuclear proliferation.  FISC has even created an exception to the Fourth Amendment, which requires a warrant for searches and seizures. Civil liberties groups are in an uproar, as they should be.
Last month, Judge Walton said the court would not stand in the way of a lawsuit by the Electronic Frontier Foundation seeking release of a FISC opinion under the Freedom of Information Act.
Walton has been known as a “tough on crime” type, but fair, perhaps even with a social conscience on issues such as drugs and alternatives to prison for drug offenders.  After all, as assistant drug czar under President George H. W. Bush, he advocated for social programs—such as education, jobs and housing— to fight poverty and drug abuse.
Walton has worked with youth and served as a Big Brother.  He had joined the legal profession to “make an impact on the quality of life for people of color in this country,” and his career was shaped by an experience of being the target of racial profiling by the police in the early 1960s.  But he was also on the other side of the law on a few occasions for offenses he was not falsely accused of committing.
A former public defender, Judge Walton has spoken out on law enforcement abuses.  However, he seems to dismiss concerns that the executive branch has expanded its power under President Obama.
Another Clarence Thomas?
All of this begs the question:  Should we care about Judge Walton?  Or should we be proud of him?
Certainly, one can look at Judge Walton’s career—or the legacy of any prominent African-American— and note his considerable accomplishments.  He is a leader who rose to the top in his profession.  And yet, some in our community forget from whence they came after they have climbed that ladder of success.  They lose touch and community perspective.
Supreme Court Justice Clarence Thomas is one person who comes to mind.  Thomas has so much power on the nation’s high court—occupying the seat of Thurgood Marshall, a man whose shoes he will never fill— but if only he used that influence to help the powerless, rather than to validate the powerful.
A beneficiary of affirmative action and the civil rights movement, Thomas has opted to dismantle that legacy, even participating in the destruction of the Voting Rights Act.
Meanwhile, for all of his virtues, President Obama has presided over an impressive domestic spying operation, however modest he claims these encroachments are.  Presidents Bush and Obama have used the NSA and have invoked 9/11 to explain away the use of surveillance on Americans.  However, Obama has enjoyed a relatively free ride compared to his predecessor on this issue.
As a former constitutional law professor, civil rights lawyer and community organizer, the president should know better.  And as a victim of racial profiling, Judge Walton should know better as well.  Black people are as aware as anyone about the dangers of government surveillance, and possibly more, as the targets of the FBI chief J. Edgar Hoover’s COINTELPRO program.
The federal government destroyed social justice movements and civil rights organizations, and helped bring down their leaders, “preventing the rise of a messiah” such as Martin Luther King and Malcolm X who could galvanize the black community.
So when a black man gets ahead of himself and decides to take on the role of Big Brother, that should give us pause.
Judge Reggie B. Walton (Photo by Joe Raedle/Getty Images)
Judge Reggie B. Walton (Photo by Joe Raedle/Getty Images)
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