The Washington Post

Roberts names judge to panel that hears rare appeals of surveillance court rulings

Chief Justice John G. Roberts Jr. appointed a longtime federal judge to the panel that reviews rare government appeals when a special court that oversees the nation’s surveillance system turns down a Justice Department request.

Roberts appointed Judge José A. Cabranes of the U.S. Court of Appeals for the 2nd Circuit in New York to the panel, called the Foreign Intelligence Surveillance Court of Review. Cabranes, 72, was appointed to the federal bench in 1979 by President Jimmy Carter and was elevated to the circuit court in 1994 by President Bill Clinton.

As its name implies, the three-judge review court hears appeals when the Foreign Intelligence Surveillance Court (FISC) turns down a request for a warrant to monitor the communications of suspects.

Unlike in other courts, there is no adversarial sparring in front of one of the court’s judges; a Justice Department official makes the case for the government agency seeking to carry out surveillance.

The FISC approved each of the 1,789 eavesdropping requests it received from the government in 2012, except for one that was withdrawn. The court made modifications in 40 of the requests, according to a report it sent to Congress.

Roberts also appoints the FISC judges and has been criticized because the overwhelming percentage of his choices were appointed by Republican presidents. Some Democrats in Congress have called for changes to the FISC appointment process, such as requiring Senate approval of the choices.

Cabranes was appointed for a term that will end in 2020. The other members of the review court, also named by Roberts, are Morris S. Arnold of the 8th Circuit and William C. Bryson of the Federal Circuit. Morris was named to the circuit court by President George H. W. Bush, and Bryson was nominated by Clinton.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.

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