Judge Richard C. Tallman’s new appointment to the three-member Foreign Intelligence Surveillance Court of Review potentially gives him oversight of highly sensitive national security matters that may never see the light of day. Tallman’s selection also comes as Congress and the White House contemplate changes in surveillance litigation, potentially putting him in the middle of an uncharted legal landscape.
“The court of review has been dormant for most of its history,” Steven Aftergood of the Federation of American Scientists said in an email Friday. “But it is nonetheless an important body because it is activated only when there is a significant legal disagreement between the government and (a) lower court. So its rulings are as significant as they are rare.”
Tallman’s seven-year term on the little-known surveillance appeals court commenced Jan. 27, but only became public Friday. Unlike his 1999 nomination by then-President Bill Clinton to the 9th U.S. Circuit Court of Appeals, a position he will still hold, Tallman did not need Senate confirmation or a White House nod for his new responsibility. Instead, he was selected by U.S. Supreme Court Chief Justice John Roberts, Jr.
An Oakland, Calif., native, the 60-year-old Tallman has spent much of his professional career in Seattle, working as a federal prosecutor and in private practice before being named to the federal bench. His private practice between 1983 and 2000 included work for the Mariners in litigation over a scheduling conflict with the Seattle Seahawks football team and the city’s Kingdome.
“He’s prepared, he asks good questions, he’s polite,” Mark R. Drozdowski, a Los Angeles-based deputy federal public defender who has appeared before Tallman several times, said Friday. “He’s very well informed about the cases.”
Drozdowski said Tallman is “seen as giving a lot of deference to the state,” and is often skeptical about prisoner petitions. At the time of Tallman’s February 2000 Senate hearing, his wife was working as a Seattle homicide detective. The judge, Drozdowski added, is also known for humanizing touches like introducing himself to attorneys before oral arguments.
In his most recent appellate court opinion, Tallman last month upheld the conviction and sentencing of a Portland, Ore., man charged with enticing a minor into a sexual relationship. The case had its legal subtleties and certainly its high stakes for the convicted felon, Randy Shill. But in many respects it was a run-of-the-mill criminal appellate matter.
The Foreign Intelligence Surveillance Court of Review is uniquely responsible for reviewing decisions by the Foreign Intelligence Surveillance Court, which handles electronic surveillance requests by the federal government. The lower-level spy court has entered the unaccustomed spotlight recently, amid revelations about massive data collection by the National Security Agency.
The Obama administration made 6,305 requests for electronic surveillance from 2009 to 2012, according to the court’s annual reports. Only one request was denied outright, though some were withdrawn. In about 100 cases the court modified the surveillance orders.
Until now, even less public attention has been paid to the court of review because it is so highly specialized and infrequent in its known operations. Tellingly, the court was never even mentioned during a Senate Judiciary Committee hearing last month on a White House advisory group’s work on surveillance.
While Congress established the surveillance court of review in 1978, its first decision didn’t come until 2002. The court was then publicly quiet again until January 2009 when it released a redacted 33-page decision made five months earlier upholding the constitutionality of a warrantless wiretap program. The court hasn’t issued a public opinion since.
Tallman’s selection for the surveillance appeals court was announced along with the appointment of U.S. District Judge James Boasberg to the Foreign Intelligence Surveillance Court. A San Francisco native who currently serves as a trial-level judge in Washington, D.C., Boasberg will start his intelligence court tenure in May.
“They are joining the courts at a time of turmoil,” Aftergood said, “and it will be interesting to see how the process unfolds.”
Competing reform proposals are now afloat on Capitol Hill, potentially changing the review court’s workload. One, by Rep. Adam Schiff, D-Calif., would urge both the surveillance court and the court of review to expeditiously disclose its decisions. Another, by Sen. Mark Udall, D-Colo., would raise the evidentiary standard for the government to secretly obtain business records. Theoretically, this could mean the government ends up appealing more often to the review court.
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