Courts
Selya is named top judge on U.S. wiretap court
01:00 AM EDT on Monday, April 14, 2008
PROVIDENCE — A federal judge from Rhode Island, Bruce M. Selya, will soon be the top judge of a secretive federal court that hears appeals involving wiretaps of suspected spies and terrorists.
Selya, a senior judge on the Boston-based 1st U.S. Circuit Court of Appeals, has been a member of the U.S. Foreign Intelligence Surveillance Court of Review since 2005. Now, Chief Justice of the United States John G. Roberts Jr. is making Selya the court’s presiding judge. The designation, which Roberts signed March 27, takes effect May 19.
“I consider it an honor and a responsibility that I will take seriously,” Selya said this week. “I certainly appreciate the confidence that it reflects [Roberts] has in me, and I will do everything in my power to make sure I will justify that confidence.”
The New York Times in 2005 revealed that months after the terrorist attacks of Sept. 11, 2001, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying.
Such warrants had been approved by the Foreign Intelligence Surveillance Court, which was formed in 1978 after the Watergate scandal to try to prevent government abuse of wiretapping. The Court of Review was set up to review denials of applications for electronic surveillance warrants by the Foreign Intelligence Surveillance Court.
Selya’s designation comes as Congress and the White House are wrangling over legislation that would overhaul the nation’s spying laws.
When asked about being involved in such a hotly debated aspect of national policy, Selya said, “In my line of work, you learn you are there to do the job as it presents itself. In my regular work, I never know when I decide a case if it will only be of importance to the parties or of national or historic significance. And you have to handle them all the same way — to be fair and to approach the problem as intelligently as you can and get the right answers.”
Selya said he could not say much more because most of the court’s work was done in secret. “Except to the extent we publish decisions or promulgate rules, we cannot comment on the business of the court,” he said.
The court consists of three judges chosen from among the U.S. district courts and courts of appeals by the Supreme Court’s chief justice. Selya will replace Edward Leavy, a senior judge on the 9th U.S. Circuit Court of Appeals. The court’s two other members will be Ralph K. Winter Jr., a senior judge on the 2nd U.S. Circuit Court of Appeals, and Judge Morris Sheppard Arnold, a senior judge on the 8th U.S. Circuit Court of Appeals.
Judges serve on the Court of Review for seven years, and Selya’s term runs through May 18, 2012.
Selya, 73, of Providence, will not be the only Rhode Islander heading on a federal appellate court involved in antiterrorism activities.
Last year, Rhode Island Supreme Court Chief Justice Frank J. Williams was named chief judge of the U.S. Court of Military Commissions Review, which was formed to hear appeals of military tribunal cases involving suspected terrorists held at Guantanamo Bay, Cuba.
The Foreign Intelligence Surveillance Court of Review is part of the application process, mandated by the Foreign Intelligence Surveillance Act, which is meant to safeguard against federal law enforcement abuse of surveillance activities.
The Foreign Intelligence Surveillance Court, which consists of 11 federal judges, reviews the applications, and if an application is denied, appeals can be made to the Court of Appeals and, ultimately, to the Supreme Court.
In 2005, one member of the Foreign Intelligence Surveillance Court, Judge James Robertson, resigned in protest of Mr. Bush’s secret authorization of a domestic spying program, according to The Washington Post. In 2006, five former judges on the court, including Robertson, urged Congress to give the court a formal role in overseeing the surveillance program, and several of them voiced skepticism about the president’s constitutional authority to order wiretapping on Americans without a court order, according to The New York Times.
On April 5, the National Journal reported that, “Despite optimism at the beginning of the week that Congress and the White House might move toward a compromise on legislation overhauling the nation’s spying laws, scant signs of progress emerged.”
The House passed a FISA overhaul bill in November, the Senate passed its own bill in February, and the White House approved a revised version last month, the National Journal said. Unlike the House bill, the Senate measure would provide retroactive legal immunity to telecommunication companies that helped the Bush administration conduct warrantless surveillance of U.S. residents. Another big difference is that the House bill would require that the Foreign Intelligence Surveillance Court give government permission before surveillance could begin, except in emergencies. The Senate bill contains no such requirement.
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