Gertner: The Real Deal

Stereotypes persist in the criminal defense bar just as they do everywhere else. The common stereotype is prosecutors are died-in-the-wool conservatives and criminal-defense lawyers are flaming liberals. Nancy Gertner is one of those rare voices that upends the hackneyed idea that a defense lawyer can't be a conservative, too. (She was a criminal-defense lawyer before she assumed a bench.)

Recently she had the nerve to stand up and stand out in the middle of Nathan Sales's speech about the "meaningful" judicial review the FISA court performs with the government's requests for records. This is what she had to say:

As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced.

Two reasons: One … The Fourth Amendment frameworks have been substantially diluted in the ordinary police case. One can only imagine what the dilution is in a national security setting. Two, the people who make it on the FISA court, who are appointed to the FISA court, are not judges like me. Enough said.

Is that terrific?

She also questioned the need of the FISA, noting that our court system already had protections in place for classified information.

I’m very troubled by that. When you get cases in court, in regular civilian court that have national security issues that have classified information, we developed a process whereby the parties would develop security clearances and it could be presented to the court without it being disclosed to anyone else. It is not entirely clear to me why a civilian court with those protections that is otherwise transparent couldn’t do the job. That’s the way we did it before. Then we moved to this national security court. The notion that we have to have a conversation about major incursions on civil liberties and that we have step back and say we don’t really know, we haven’t seen the standards, we haven’t seen the opinions is extraordinary troubling in a democracy.

Needless to say, I'm a big fan. Read more about her criticisms of the FISA court here.

Criminal LawSmythe PC