A few weeks ago, former FISC judge John Bates (now helming the Administrative Office of the US Courts) sent a letter to the intelligence oversight committees arguing that the Senate's USA Freedom Act would do too much damage to the NSA and the FISA Court. Bates feels the toothless bill passed by the House would be a much better fit for the FISA Court.
In particular, Bates raised several not very convincing arguments against the appointment of an advocate to act on behalf of the surveilled, thus turning this secret court into something more adversarial. Steve Vladeck of Just Security noted a few problems with Bates' arguments back in early August.
First, on the informational point, Judge Bates offers no evidence in support of his claim that allowing a security cleared outside amicus to participate before the FISA Court will somehow affect the government’s duty of candor to the tribunal, or otherwise disrupt the (apparently quite congenial) relationship between the FISC and the relevant government stakeholders. Indeed, Congress has already provided for security cleared private counsel to participate in FISA Court proceedings in the contexts of applications under section 215 of the USA PATRIOT Act and section 702 of FISA (as amended by the FISA Amendments Act of 2008). Does Judge Bates object to those provisions, as well? If not, why would a security cleared special advocate be any different in this regard than a security cleared private lawyer for the recipient of a section 215 production order or section 702 directive?
Not only are Bates' concerns non-specific and undermined by provisions already in place, but his disagreement with these aspects find him standing alone.
Moreover, 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?
Bates' objections to these reforms make him somewhat of an outsider, even inside his own wheelhouse. But you wouldn't know it by the phrasing Bates uses in his letters -- letters that he's been sending to various oversight entities since the beginning of the year. After making it clear he was speaking in a more limited capacity in letters sent in January and February
("...as a liaison for the Judiciary on matters concerning the Foreign Intelligence Surveillance Act"), that wording vanished from those sent later in the year. The letters Just Security covered in August saw Bates giving himself increasing prominence
… the new letter both (1) fails to persuade in its substantive objections; and (2) only further raises the question of why Judge Bates believes he’s entitled to speak “on behalf of the Judiciary”–especially when at least two former FISA judges have expressly endorsed reforms far more aggressive than those envisaged by the Senate bill…
9th Circuit Appeals Court Chief Judge Alex Kozinski is now wondering the same thing
, having had Bates' letters forwarded to him by a colleague. He has sent a letter to Patrick Leahy, the chairman of the Judiciary Subcommittee, informing him of Bates' tactics. (The letter also CC's leaders of both the Senate and House Intelligence Committees, as well as Eric Holder and Judge John Bates himself.)
I am writing in regard to a letter sent to you on August 5, 2014, by The Honorable John D. Bates, Director of the Administrative Office of the United States Courts. In that letter, Director Bates comments on legislation now pending in the Senate, namely the USA FREEDOM Act, S. 2685. In so doing, Director Bates purports to speak 'on behalf of the Judiciary,' and frequently uses the first-person-plural pronoun 'we' in stating his views. I understand 'we' to refer to the federal judiciary.
Kozinski then points to Judge Bates' January letter in which he states that these sorts of issues are usually deliberated by the Judicial Conference before presenting the federal judiciary's collective opinion. Kozinski notes that "nothing has changed" between January's more limited letter (when Bates spoke as only a FISA representative) and August (after Bates began claiming he represented the entire federal judiciary).
Kozinski finished up by pointing out that not only does Bates not
speak for the whole of the judiciary, but that much of the judiciary is unlikely to back up Bates' positions. He makes it entirely clear that he won't.
The matters raised by S. 2685 and Director Bates's letters are of profound significance and merit the closest consideration. I have not, however, had an opportunity to study them and make an informed decision because, as Director Bates notes, "the [Judicial] Conference has not at this time been engaged to deliberate on them." Were the matter put before the Judicial Conference, I would certainly take the time to study it, form an opinion and cast a vote, after considering the views of my Judicial Conference colleagues. And, whatever the outcome, I'd feel bound by that decision. But, having given the matter little consideration, and having had no opportunity to deliberate with the other members of the Judicial Conference, I have serious doubts about the views expressed by Judge Bates. Insofar as Judge Bates's August 5th letter may be understood as reflecting my views, I advise the Committee that this is not so.
We'll have to see what Bates' post-Kozinski letters bring. He probably won't change his mind on FISA court reforms, but he'll likely stop claiming he speaks for the judicial branch, when he's clearly only pushing his own agenda.