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Judge Bates and FISA Reform

Over at Lawfare, I have a short post on the terribly weak provisions with regard to a “special advocate” to argue before the FISA Court in the Manager’s Amendment to H.R. 3361–the artist formerly known as the USA FREEDOM Act–and the important new letter submitted today by the Liberty and Security Committee of the Constitution Project, which summarizes the current bill’s flaws and identifies three minimum elements Congress must incorporate into any “special advocate” proposal in order for it to be effective.

But there’s another part of this story that merits more sustained discussion: the curious role of D.C. District Judge John D. Bates.

As I noted back in February, Judge Bates, who, among other things, has served as the presiding judge of the FISA Court, and is currently the Director of the Administrative Office of the U.S. Courts–the administrative wing of the federal courts–has been one of the more surprising (and influential) critics of the “special advocate” proposals. Back in January, Judge Bates submitted “Comments on the Judiciary on Proposals Regarding the Foreign Intelligence Surveillance Act,” along with his own cover letter transmitting those comments. And as I wrote shortly thereafter, much of the concerns raised by Judge Bates in both his transmittal letter and the comments were directed at low-hanging fruit–and had been overtaken by more nuanced, subsequent proposals. (See also this post by Marty Lederman and me reacting to a CRS Report on the same subject.) But although it was unusual, I didn’t think it at all inappropriate that Judge Bates was participating in this debate. As he explained in his transmittal letter,

Traditionally, the views of the Judiciary on legislative matters are expressed through the Judicial Conference of the United States, for which I serve as Secretary. However, because the matters at issue here relate to special expertise and experience of only a small number of judges on two specialized courts, the Conference has not at this time been engaged to deliberate on them. In my capacity as Director of the Administrative Office of the United States Courts, I have responsibility for facilitating the administration of the federal courts and, furthermore, the Chief Justice of the United States has requested that I act as a liaison for the Judiciary on matters concerning the Foreign Intelligence Surveillance Act (FISA). In considering such matters, I benefit from having served as Presiding Judge of the Foreign Intelligence Surveillance Court (FISC).

In other words, Judge Bates was exceedingly careful to stress the limited capacity in which he was speaking–even if any number of his letter’s readers didn’t appreciate the nuance.

Judge Bates has now sent a second letter, dated May 13, 2014, which is appended to the HPSCI Report accompanying the Manager’s Amendment to H.R. 3361 (see the last three pages of the linked PDF). In this letter, Judge Bates purports to speak far more categorically “[o]n behalf of the Judicial Branch,” and offers a series of reactions to / critiques of the Manager’s Amendment–including the diluted “special advocate” provision at the heart of the Constitution Project letter. Moreover, the new letter refers to all of his concerns in the plural (“we”), which, to uninformed readers like me, certainly gives the appearance that the entire federal judiciary has the same concerns about this pending legislation.

To my mind, this new letter raises three distinct concerns:

First, it is not clear what authority Judge Bates possesses to speak on behalf of the entire federal judiciary. Unlike the January letter, in which Judge Bates was speaking solely in his capacity as Director of the Administrative Office, and was therefore reacting to the various reform proposals in an administrative capacity, the new letter, responding to specific legislation “[o]n behalf of the judiciary,” seems more problematic–especially insofar as some of the critiques he offers in the letter do not just go to the administrative burden that the proposal will place on the federal courts, but substantive objections to the policy wisdom of specific elements (e.g., the FISA “special advocate”). Especially in this context, where the whole question is whether the FISA Court’s decisionmaking could benefit from more adversarial presentation as compared to the existing, predominantly ex parte status quo (which necessarily reflects an assumed, if unspoken, critique of the FISA Court), one might reasonably question whether FISA Court judges are neutral, disinterested parties who ought to be participating in the legislative reform discussion–all the more so if they’re purporting to speak on behalf of others.

Second, it is not clear that Judge Bates is in fact speaking on behalf of the federal judiciary–or even the FISA Court. We know from public discussions that at least two of Judge Bates’s former colleagues on the FISA Court–Judges Carr and Robertson–are far more supportive of certain FISA reforms, including a more robust role for a FISA “special advocate.” And from private conversations, I think it’s safe to say that Judges Carr and Robertson are not alone. And so even if there wasn’t something slightly odd about Judge Bates purporting to speak on behalf of the entire federal judiciary, or even the entire FISA Court, one might reasonably question why, in fact, we can be confident that the views stated in his letter are indeed the consensus (if not unanimous) views of relevant federal jurists. If anything, this only underscores the more general awkwardness of judges participating in these debates in anything other than an individual capacity.

Third, and in any event, it’s not clear that the concerns expressed in the new letter are all that significant, and therefore worthy of such unusual public comment. The discussion of the special advocate provision, for example, is largely a celebration of the provision’s weaknesses. And the rest of the letter is directed at the provisions relating to release and reporting of FISA Court opinions (that is, after the judges’ work is done), and mostly applauds Congress for also diluting the more robust requirements in the initial bill, as well. And so even if such a letter would be appropriate in cases in which there are critical issues that Congress has not yet considered, and on which the courts are in a unique position to share their expertise and inform the conversation, this letter doesn’t seem to do either of those things.

Don’t get me wrong; I have all the respect in the world for Judge Bates, who is an exceptional legal thinker and jurist. And even if I didn’t, he has a right to share his views to an extent no different from anyone else in his capacity. But it would be unfortunate if Members of Congress, or the press, or anyone else for that matter, gave too much credence to his own objections to FISA reform. That’s not to say his views don’t deserve serious consideration; they clearly do. Just that they shouldn’t be the last word.

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About the Author

is co-editor-in-chief of Just Security. Steve is a professor of law at American University Washington College of Law. Follow him on Twitter (@steve_vladeck).