Scott Thill

August 28, 2007

“Newspaper endorsements tend to count for lower offices and offices people don’t know much about,” says Sherry Bebitch Jeffe, a senior scholar at the School of Policy, Planning and Development at the University of Southern California. “Superior Court judge?” she says. “I use the L.A. Times because I don’t know anything about the judges who are up for election and reelection. … You’re talking about a city as large as Los Angeles. The only coverage a low office like a judgeship, for example, might get is the endorsement.”   –“What’s the Point?” –American Journalism Review, Oct. 2004

When’s the last time you met a judge? Who are they, and how do they get there? Chances are your first encounter with one will be if you’re on the wrong side of the law or at the ballot box. And that’s just local judges you vote for during regional and national elections. There are others, including federal court judges, who are appointed by the president of the United States and have to be confirmed by the Senate in accordance with Article III of the U.S. Constitution. Then there are judges that sit on secret courts, such as our own Foreign Intelligence Surveillance Court (FISC), who can survey evidence and decide who to spy on without their knowledge. And if you don’t know who these judges are, you could be absolutely screwed.

Of course, that depends on who you are and where you live, or which God you pray to, depending on the court and the conflict at hand. But in times of terror such as our own, all of these players merge into what Orwell called Big Brother, what the Wachowski Brothers called The Matrix or, more simply, what Americans call the Bush administration. And if that sounds alarmist to you, then perhaps it’s time to take a peek at how your civil liberties have been doing with not just the federal judges but also the FISC itself. You might find after sifting through the information that better knowing your judges–and their decisions–might save your ass.

Lesson One: The Catch-22

Joseph Heller’s legendary novel Catch-22 made its name as a commentary on madness. In order for its protagonist Yossarian to get out of fighting in World War II, he had to prove he was crazy. Yet it takes sanity to argue you’re mad. Worse, even if the military finds you competent for service, the hyperreal lunacy of war will eventually drive you mad anyway. That’s the rabbit hole, as well as a pretty good introduction to the White House’s current defense of the National Security Agency’s (NSA) warrantless wiretapping program.

Here’s the short version: In the past, the FISC allowed the NSA to spy on communication between foreigners deemed to be a threat to national security or American interests abroad. But under the Bush administration, that dragnet has been expanded to include American citizens as well. You can thank the post-9/11 Patriot Act and Congress for that one. Speaking of Congress, before it left for recess last month, it temporarily updated the Foreign Intelligence Surveillance Act (FISA), which is governed by the judges on the FISC, to allow spying on American citizens even if the NSA isn’t sure if they’re talking to foreigners. In other words, the only thing standing between Alberto Gonzales’ midnight listening sessions and your phone calls are, you guessed it, judges.

Here’s the good news: In less than six months, the update expires and needs to be reinstated. Here’s the other good news: It was a FISC judge that banned eavesdropping on foreigners whose calls were being routed through the United States. But here’s the bad news: That judge’s decision happened months ago, was never publicly declared by the administration, and compelled the Bush team to amend FISA to its spying advantage. Here’s the worst news: The Democrat-led Congress rolled over and let it through.

When it comes to knowing your FISA judges, don’t feel bad if you fail. That’s because not only are its judges’ identities a secret, but so are their decisions. Which is why the Bush administration feels it can withhold those decisions from the public when they need to hear them, or why they legally don’t have to confirm or deny your rights are even being compromised. Just ask judge Alice Batchelder, a Bush appointee, who with judge Julia Smith Gibbons outvoted judge Ronald Lee Gilman 2-1 to throw out the American Civil Liberties Union’s warrantless wiretapping lawsuit against the NSA because, as their decision put it, “the plaintiffs do not–and because of the State Secrets Doctrine cannot–produce any evidence that any of their own communications have ever been intercepted by the NSA.”

In other words, Catch-22. You can’t sue for being spied on because you can’t look at the evidence that you were spied on. Because it’s a state secret. Just like the FISC judges and their decisions.

That judge Batchelder was a George W. Bush appointee who infamously concurred in 2005 with judge Richard Fred Suhrheinrich, himself a George H.W. Bush appointee, to allow the continued display of a statue listing the Ten Commandments in a Kentucky courthouse is just one of a few reasons to suspiciously regard her decision in both cases. Another is that the decisions are ludicrous. Same goes for Julia Smith Gibbons, who was also appointed by, you guessed it, George W. Bush.

The lesson is that not only do you need to know who the judges are making some of the most important decisions about your rights, but you also need to know who appointed them. And what else they feel they owe the politicians who give them their jobs, which are more or less lifetime appointments based on “good behavior.” Of course, what “good behavior” means to one person is different than what it means to another. Ask any American citizen who wants to challenge his unlawful surveillance in court.

Lesson Two: The outing

Of course, ordinary American citizens aren’t alone in their subjection to the whims of judges and the politicians who appoint and confirm them. So are the spies themselves, as Valerie Plame recently discovered.

A covert CIA agent for 20 years before being outed by CNN personality Robert Novak and “Scooter” Libby (and Richard Armitage, and Karl Rove, the list goes on …), Plame had her cover blown and was forced to retire, and all because her husband ambassador Joseph Wilson criticized the Bush administration’s claims of Iraq’s pursuit of WMD as being comprised of exaggeration, speculation and little else. After years of headline coverage and legal wrangling with the White House, Plame’s suit against Cheney for violation of her constitutional rights was dismissed by judge John D. Bates, in effect granting the White House the authority to out its intelligence officials on a political whim.

Bates? You guessed it. Appointed by George W. Bush in 2001, two months after 9/11.

It gets worse. Unlike Batchelder and Smith Gibbons, Bates has a history of being rough on Republican critics. He worked for years with Kenneth Starr investigating an evidently more heinous crime involving lies and disclosures, that of Bill Clinton’s sexual relations with Monica Lewinsky. That Clinton was eventually impeached for his crime but Bush was eventually cleared of his own, from illegally spying on his own citizens to endangering its intelligence officials, shows you how much power the judges you know, and especially the ones you don’t, hold your fate in their politicized hands.

Who watches the watchmen?

In legendary writer Alan Moore‘s V For Vendetta, a genre-bending comic before it became a Hollywood blockbuster, a nation survives the post-apocalypse by turning into a police state distracted by hate media and spied on within an inch of its life. In his epochal Watchmen, due out as a Hollywood blockbuster shortly after Election 2008, a group of power-mad superheroes destroy New York City to save the overall planet from nuclear war. But Moore took his influential comic’s name from the ancient Latin phrase Quis custodiet ipsos custodies? Which translates loosely, depending on who you are or where you live or what God you pray to, as “Who will guard the guards?” or “Who watches the watchmen?”

Good questions, and their continued synchronicity with our own times of terror is instructive–and relieving. After all, the Roman poet Juvenal, who wrote that line in his Satires, was criticizing the culture and politics of his own time, whose empire would later implode in material excess and military overreach. But humanity persevered, and the world didn’t end. Just the Roman Empire.

Which is the primary lesson to take away from the minor ones: The world won’t end if the Bush administration achieves the powers it so aggressively covets. Your civil liberties and your rights under the Constitution? Well, that’s a state secret, isn’t it?

Scott Thill runs the online mag Morphizm.com. His writing has appeared on Salon, XLR8R, All Music Guide, Wired and others.