The Wall Street Journal has a very puzzling op-ed today criticizing the Chief Judge of the FISA Court, Judge Colleen Kollar-Kotelly, for not permitting DOJ to include evidence obtained from the NSA domestic surveillance program in applications for FISA warrants. The Journal's editors are apparently outraged by a judge taking on this role, and ask "Who elected Ms. Kollar-Kotelly?"
[W]hy is an unelected judge such as Ms. Kollar-Kotelly making these decisions? Under the Constitution, those calls ought to be made by the President, who swears to defend the U.S. and can be held accountable by the voters if he fails. Under the current FISA court process, Judge Kollar-Kotelly answers essentially to no one.I don't understand. Judge Kollar-Kotelly "answers essentially" to the Foreign Intelligence Court of Review, the appellate court that has statutory authority to review denials of FISA warrant applications. If DOJ didn't like Kollar-Kotelly's interpretation of her legal obligation under FISA, then presumably the proper course of action under the law was to invite Kollar-Kotelly to deny an application and then to seek review in the Foreign Intelligence Court of Review — and, if necessary, in the United States Supreme Court. That's the process designed by the "elected" Congress that enacted FISA, at least.