Judges are, and aren’t, competent to rule on intelligence issues

Lots to parse on this one, although it looks like a new chapter in the “Surveillance Wars” Edward Snowden started with his leaks.

Two choice quotes really stood out to me in this article, though, especially because they are in sequence:

Gen. Michael Hayden, former director of both NSA and the Central Intelligence Agency, said […] judges “are not really in a good position to judge the merits of intelligence collection programs.”

That’s funny, because the very next paragraph cites consistent judicial approval of the program as a defense to its continued use:

An Obama administration official said that on 35 occasions in the past, 15 separate judges assigned to the secretive Foreign Intelligence Surveillance court had declared bulk communications of telephone metadata lawful.

Which one is it? Well, as usual with the law, it’s probably both. Judges are human too, despite what some litigators may say, and their job is to decide.

Whether that decision is sufficiently informed in every case is up for debate, but if the former head of the NSA and the CIA doesn’t think judges are well-equipped to render decisions on intelligence collection programs, it’s curious the Obama administration would rely on that judgment in defending the collection programs. 

Perhaps the Foreign Intelligence Surveillance Act (FISA) should be amended to mandate an intelligence background for all judges appointed to the Foreign Intelligence Surveillance panel.

As it stands now, the Chief Justice of the Supreme Court can quite literally appoint whomever he wants to the FISA court, whether they have any experience in intelligence or not.

How intelligent is that?