One of the more obscure institutions to emerge from Edward Snowden’s NSA campaign is the Foreign Intelligence Surveillance Court (also known as the FISA court) which, operating in total secrecy, reviews and approves countless secret government orders to monitor and record the communications of Americans — often in tandem with publicly-traded telecommunications firms like AT&T and Verizon. Now that we know the extent to which the FISA courts rulings govern the behavior of telecommunications behemoths, we took a look at the extent to which the court’s judges are personally invested in those very same behemoths. The answer is a lot.
Like all judges, each of the surveillance court’s 11 members, plus the 3 judges who sit on its Court of Review, are required to file an annual financial disclosure where they catalog their income and investments in hopes of diminishing the appearance of a conflict of interest. The most recent available disclosures for all 14 judges, collected over the years by Judicial Watch, indicate plenty of potential conflicts.
Judge Thomas F. Hogan, for example, disclosed stock valued between $15,000 and $50,000 in AT&T stock, and between $15,000 and $50,000 in Verizon, in a 2011 disclosure filed more than two years after his FISC appointment in 2009. (The disclosure forms require ranges, not exact amounts.)
In May 2011, three years after his appointment to FISC, Judge James Zagel disclosed investments in AT&T, Time Warner Cable, and AOL — each worth “less than $15,000” — plus a larger investment in the computer firm Oracle worth between $15,000 and $50,000. Oracle CEO Larry Ellison recently defended the NSA’s surveillance capabilities as “absolutely essential” after arguing, counter-factually, that such capabilities could have stopped the Boston Marathon bombings. After the Guardian and Washington Post disclosed the NSA’s PRISM Internet surveillance programs, authorities in China reportedly launched a probe into whether Oracle was installing NSA-friendly backdoors in its hardware.
Most current FISC judges do not directly own stock in telecommunications companies, and those that do tend to own stock in large companies like AT&T and Verizon, whose massive customer bases make for both fairly solid investments and obvious targets of governmental surveillance. But smaller companies popped up in some disclosures, too. For example, in his 2011 disclosure, Judge Martin L.C. Feldman disclosed an investment worth between $1,000 and $15,000 in a California company called Shoretel, which specializes in enterprise-level VoIP technology: precisely the sort of the company that would be vulnerable to, and inclined to obey, a secret FISA order.
None of this to suggest that these judges are corrupt, or that any of the companies were implicated in an order granted by the Foreign Intelligence Surveillance Court. (For one, it would be illegal for those companies to acknowledge the order’s existence; the only firm concretely known to have been ordered to hand over bulk data to the NSA so far is Verizon.) But financial disclosure laws are useless when evaluating judicial officers who convene and rule in secrecy, as the FISA judges do.
There’s no way to assess a potential conflict of interest when you don’t even know what a judge, or an entire court, is ruling on. Indeed, nobody actually knows whether a FISA court judge has ever recused himself. And it’s unclear whether any of the telecommunications firms under the NSA’s thumb are compensated for their cooperation — and, if so, by how much.
The aforementioned disclosures are just a small peek, however. We’ve requested the latest disclosures, filed in spring 2013, for each FISC judge. And one of those judges, F. Dennis Saylor, just ordered the White House to release additional FISA court opinions by October 4. The first such opinion, incidentally, was published today.
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