Former Top FISA Judge Insists USA Freedom Act Is Dangerous Because It Might Mean FISA Court Can't Rubberstamp So Fast
from the say-what-now? dept
That this rather hubristic claim was shot down by multiple experts apparently has not dampened Judge Bates' insistence that he, and he alone, expresses the views of "the judiciary" when it comes to the intelligence community. As reported in the Wall Street Journal, Judge Bates has sent a new letter, this time to Senator Patrick Leahy, expressing his concerns about Leahy's new USA Freedom Act, a bill that is a big step forward (though could still use more help). That bill was the result of months of negotiating between the Senate, the intelligence community and the White House. It's a "compromise" bill in almost every way.
But Judge Bates doesn't like it. At least in the past, his argument was actually concerning the judiciary, and how some of the proposed reforms might potentially overburden it (even if those arguments weren't particularly well supported). With this new letter, he more or less shows his hand as a surveillance state apologist, in that many of the arguments have little to nothing to do with how the new USA Freedom Act would impact the judiciary (which, again, Bates claims he alone represents), but rather how it would impact the intelligence community and the executive branch. Here, for example, he's concerned that if there were a civil liberties advocate allowed to be an adversary on the court, it would mean that the government would be afraid to reveal certain things:
In fact, the participation of the special advocate could actually hinder the ability to obtain complete and accurate information. Introducing an adversarial special advocate in FISA proceedings creates the risk that representatives of the Executive Branch who, as noted, have a heightened duty of candor in ex parte FISA court proceedings would be reluctant to disclose to the courts particularly sensitive factual information, or information detrimental to a case, because doing so would also disclose the information to an independent adversary. This reluctance could diminish the court's ability to obtain all relevant information, thus degrading the quality of its decisions. Alternatively, it could prompt the government not to pursue potentially valuable intelligence-gathering activities under FISA.That last sentence is quite telling. As a judge, how is it of Bates' concern whether or not the intelligence community decides to pursue intelligence-gathering efforts? He seems to assume that limiting the ability of the intelligence community to spy on people is, inherently, a problem.
Furthermore, just the idea that the court is more likely to get all the information in a non-adversarial environment seems totally without support. It doesn't make any logical sense either. Under the existing "ex parte" system, the government has every incentive in the world to distort the facts and provide "just enough" information to get the rubber stamp to come down. Having an adversarial process designed to protect civil liberties can further delve to make sure that all the relevant information is on the table. Why is Judge Bates so afraid of that?
In fact, as Harley Geiger points out, if anyone should know better, it's Judge Bates. After all, just a few years ago, he was the one who issued a stinging FISC decision accusing the government of regularly misrepresenting things. And yet, now he's claiming that the government is always nice and open with FISC and wouldn't benefit from having a third party asking questions?
Furthermore, as Steve Vladeck notes in a detailed response to Bates, it's bizarre that Bates seems to be saying that he's concerned about the executive branch's ability to do surveillance, when the executive branch helped negotiate the compromise that created this bill. Why is Bates so concerned, other than that he's in favor of greater surveillance?
with respect to Judge Bates’s real concern–that having to provide a special advocate with access to at least some of the classified information upon which surveillance applications are based “could prompt the government not to pursue potentially valuable intelligence-gathering activities under FISA”–it’s more than a little telling that the Executive Branch nevertheless supports the Senate bill. If this was really a genuine problem (indeed, some may well think that forcing such a choice is exactly the point), wouldn’t we expect to have heard about it from the intelligence community, the Justice Department, and/or the White House? That is to say, isn’t Judge Bates’s real objection here on behalf of the (apparently content) Executive Branch, and not the judiciary? Even the former FBI General Counsel has openly supported these kinds of reforms…Meanwhile, Vladeck rightfully challenges why Bates believes that he, alone, can speak for the entire judiciary on this matter, given that many other judges -- including other FISA court judges -- have supported these kinds of reforms.
The same response can be offered to Judge Bates’s concern about the timing of surveillance applications, and the extent to which resolving whether a special advocate should be appointed will slow down cases that demand expedition. One would once again think that, if the intelligence community, Justice Department, or White House was actually worried about this problem, they would not have agreed to the language in the current version of the Senate bill. And a big part of why they probably did agree to this language is because Judge Bates’s timing concerns are a red herring. As he himself concedes, “the bill would give courts discretion, consistent with the timing requirements imposed by Congress on FISA court action or as otherwise appropriate, to decline to designate a special advocate even when one would, as a default matter, be required.” His concern instead appears to be that even deciding whether a specific case is one in which it would take too long to make that determination will itself take too much time. Somehow, I suspect that jurists like Judge Bates will not be especially inclined to go out of their way to hamstring themselves (or the Executive Branch) in such cases, but will rather take full advantage of the discretion the Senate bill affords them.
Second, and more fundamentally, we return to the question I raised back in May–by what right does Judge Bates even purport to speak “on behalf of the Judiciary”? Yes, he is the Director of the Administrative Office of the U.S. Courts (AO)–and, in that capacity, serves as Secretary to the Judicial Conference of the United States. But under federal law, it is the latter body–the Judicial Conference–and not the AO that is the official policy voice of the federal judiciary, and for good reason. Federal law not only outlines who serves on the Judicial Conference, but it also provides procedural and substantive rules to guide that body in how it conducts business, with an eye toward ensuring that it only speaks on pending policy issues of appropriate concern to federal judges.It's become clear that Judge Bates' concerns are not those of "the judiciary" or even personal concerns about it might impact his role as a judge. Instead, it's pretty clear that he believes in the surveillance state, and is worried that something like the USA Freedom Act might push back on the surveillance state. That's a position that he's entitled to have, of course, but he shouldn't be claiming to represent the entire judiciary while pushing such an agenda.
Part of why it is so important for Judge Bates to clarify the authority with which he is purporting to speak is because we know better. As I wrote back in May, at least two of Judge Bates’s former colleagues on the FISA Court have publicly endorsed far more aggressive reforms to the FISA Court (including through a special advocate) than those provided by the Senate bill: Judge James Carr in a July 2013 op-ed in the New York Times, and Judge James Robertson in a series of speeches delivered last summer. It should follow that at least Judges Carr and Robertson–and, based on my own private conversations, far more of their colleagues–don’t share Judge Bates’s concerns about the Senate bill. They’re not alone.