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

Judge John Bates, a district court judge who also served on the FISA Court seems to have decided that his job as a judge is to defend the surveillance state, and with it the judiciary's role in protecting the surveillance state. Earlier this year, we wrote about Judge Bates sending a letter to Senator Dianne Feinstein, urging that no major changes be made to how the FISA court did its business. Among a number of questionable arguments, Bates also (falsely) claimed that his letter (which only he signed) represented the views of "the Judiciary." While the Judicial Conference normally is in charge of expressing any views on policies that impact the judiciary, Bates apparently decided (by himself) that since he was secretary of the Judicial Conference and had served on the FISA Court that he could just officially state the position by himself.

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…

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.
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.
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.

[....]

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.
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.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    ChurchHatesTucker (profile), Aug 8th, 2014 @ 8:03am

    Hrm

    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?


    Makes you wonder what they've got on him.

     

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  2.  
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    Anonymous Coward, Aug 8th, 2014 @ 8:06am

    This just says that Judge Bates can not be relied upon to be a neutral party and judge fairly , thus creating more distrust in the system that was created to act as overseers of the laws that govern our Country . remove him from his duties if he can be impartial.

     

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  3.  
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    Baron von Robber, Aug 8th, 2014 @ 8:30am

    There's probably a competition to see who can stamp faster.
    FISA Courts or the Patent Office

     

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  4.  
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    Anonymous Coward, Aug 8th, 2014 @ 8:31am

    I agree with commenter #2 in that it sounds like Judge Bates has lost his impartiality.

    I would also suggest that without the adversarial process, Judge Bates hears only one side. It is already apparent he doesn't think much privacy and freedom limitations from his statements. That's not what this country is supposed to be about.

    What this country has been in the past and what it still tries to portray itself as being has been made mockery of by the very processes this judge is advocating. I am sure I am not the only one to recognize the hypocrisy I see every time the Secretary of State runs off to some country like China screaming about human rights but won't recognize that the US is becoming more like China every day.

    We condemn torture yet our own government sponsors it. We condemn censorship, yet own own government is square in the middle of preventing the citizens from knowing what it is doing in their name. We condemn corruption yet it is all around us on our native land for anyone to see. We often condemn doublespeak which says one thing and means something else in another country, yet is practiced with gusto here.

    We are no longer the police of the world nor should we be. We spend tons of money on wars but the interior infrastructure that allows the country to be a country is being ignored to the point that bridges are literally falling apart while in use and we already knew they were substandard. This country has no mass transportation available to it's citizens yet it is more important to increase gas mileage than it is to remove cars from the road by mass transit.

    Sorry for the rant. It's just much of what happens doesn't make sense from the announced perspective unless you view corruption and corporate/government shenanigans as running hand in hand. Judge Bates hits the tip of the iceburg with his speel about the government needs more leeway than it already has.

     

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  5.  
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    Jerrymiah, Aug 8th, 2014 @ 9:09am

    Judge Mast r Bates

    Guess he's now receiving nice sums of cash for his defense if the Intelligence Community.

     

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  6.  
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    Ninja (profile), Aug 8th, 2014 @ 9:16am

    Re: Judge Mast r Bates

    I don't know if but from the Intelligence community there's already fierce competition from Keith Alexander!

     

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  7.  
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    wec, Aug 8th, 2014 @ 9:35am

    When did the judiciary become a part of the Executive Branch?

     

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  8.  
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    Coyne Tibbets (profile), Aug 8th, 2014 @ 9:35am

    Question your Honor?

    "to disclose to the courts [...] information detrimental to a case"

    Excuse me, your Honor, but you wouldn't be discussing "exculpatory evidence," would you? Wouldn't discussing that be a duty in any court?

     

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  9.  
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    observer, Aug 8th, 2014 @ 9:52am

    Re:

    This is the most damning bit: "Alternatively, it could prompt the government not to pursue potentially valuable intelligence-gathering activities under FISA." The value or otherwise of the government's intelligence activities is so far beyond his remit that it can't see his remit on a clear day: he is (or should be) an impartial judge, not an advocate of any specific position.

     

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  10.  
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    JoMamma, Aug 8th, 2014 @ 10:30am

    Looks like...

    ...the patriots have another name for their list...

     

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  11.  
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    Mason Wheeler (profile), Aug 8th, 2014 @ 10:54am

    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.

    Seems to me that that right there is direct evidence that the guy is compromised and unfit to continue to hold this position. Limiting the ability of the intelligence community to spy on people is not a problem; it is literally the entire reason the FISA court exists, and if he doesn't get that, he doesn't belong anywhere near the decision-making process.

     

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  12.  
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    Harley Geiger, CDT, Aug 8th, 2014 @ 1:29pm

    Bates' arguments are not persuasive.

    As Mike noted above, the Center of Democracy & Technology (CDT) wrote a response to Judge Bates' letter: https://cdt.org/blog/a-response-to-judge-bates-letter-on-fisa-court-reform/ CDT supports Sen. Leahy's current version of the USA FREEDOM Act.

    Bates' letter argues that a special advocate would cause the government to withhold information from the FISA Court. However, the Executive has already done so repeatedly, as Bates' own declassified 2011 opinion points out. Given this patten of misrepresentation, a special advocate helping the FISA Court vet privacy considerations is necessary.

    Bates argues that the FISA Court should have control over the special advocates, the information they access, and the scope of their participation. However, the FISA Court already has these powers for regular amicus curiae, and clearly that power did not prevent several scandalous uses of government surveillance authority. Moreover, the Senate version of USA FREEDOM gives the FISA Court a lot of flexibility - the FISA Court chooses who serves as a special advocate, and the court may decline to use a special advocate if the court determines (in writing) that doing so would be inappropriate.

    Bates argues that the special advocate would increase the workload of the FISA Court. However, this is an appropriations problem, not a reason to remove the special advocate. Given the sensitivity of the court's work, Congress should provide greater funding to the FISA Court to hire more staff. The USA FREEDOM Act provides for the appropriation of funds as necessary to carry out the special advocate provisions.

    The special advocate provisions in USA FREEDOM are already a major compromise. Compromising further, as Judge Bates suggests, such as by removing the special advocates' civil liberties mandate or access to information, would render the special advocate provisions ineffective.

    We urge Congress to pass USA FREEDOM without weakening its provisions.

     

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  13.  
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    steell (profile), Aug 8th, 2014 @ 4:23pm

    Judge, do you really want us to open that closet door and reveal the contents to the public?
    Yeah, didn't think so.

     

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  14.  
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    sophisticatedjanedoe (profile), Aug 10th, 2014 @ 9:15am

     

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  15.  
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    That One Guy (profile), Aug 11th, 2014 @ 3:13am

    Re:

    Ah, that explains it, he just hates the public and loves sticking knives in their backs. Whether it's backing extortionists, or backing spies, as long as the public gets screwed over it's all good for him.

     

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  16.  
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    LookingOverMyShoulder (profile), Aug 12th, 2014 @ 9:24am

    Fisa a failed and unconstitutional program

    It's time this was completely demolished. Originally designed to catch tax evaders and money laundrying, it's been expanded past all reasonable use. This and the so called Patriot Act should be repealed. Let the NSA go through regular courts and get warrants just like all LEO organizations should. The same for the FBI. It's way past time we got back to due process in this country just as is stated in the Bill of Rights.

     

    reply to this | link to this | view in thread ]


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