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Judge Bates (Unintentionally) Makes the Case for FISC Reform

Whatever one thinks of the Senate version of the USA FREEDOM Act–which offers a series of substantive and procedural reforms to U.S. surveillance programs–it is now clear that its provisions reflect a series of hard-fought backroom compromises hammered out between key Senators and the relevant constituencies within the Executive Branch. This fact is essential in putting into context a new Wall Street Journal story on the latest in a series of letters from Judge John D. Bates, Director of the Administrative Office of the U.S. Courts, to the Chair and ranking members of the Senate Judiciary and Intelligence Committees. In the letter–at least the third that he has sent responding to specific surveillance reform proposals so far this year–Judge Bates raises a series of concerns with those provisions in the Senate bill focused on reforming the Foreign Intelligence Surveillance Court (FISC) itself, and suggests “on behalf of the Judiciary” that the (objectively weaker) House bill is more desirable.

I’ve written before about both the substance of Judge Bates’s previous critiques and their… unusual… optics. Although much of that analysis applies with equal (if not greater) force to the Judge Bates’s latest missive, I wanted to follow up on the new Journal story to underscore the extent to which 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, and when the substance of Judge Bates’s objections go principally to burdens on the Executive Branch, not the courts.

But perhaps most importantly, and more than a little ironically, insofar as Judge Bates appears to be trying to protect the Executive Branch even from itself, the real takeaway from these letters is the extent to which they reinforce the charge that the judges staffing the FISC, by themselves, provide an insufficiently independent check on government surveillance programs–which is the entire reason why these reforms have been pursued (and are so essential) in the first place.

I.  The Concerns Raised in the August 5 Letter

The newest letter from Judge Bates, dated August 5, raises three principal concerns about the Senate bill with respect to the FISC. First, he argues that the introduction of a special advocate charged with taking a position adversarial to the government will reduce the ability of the FISA Court to “obtain[] complete and accurate information from the Executive Branch in a timely fashion.” This is so, he writes, because “[i]ntroducing an adversarial special advocate in FISA proceedings creates the risk that representatives of the Executive Branch . . . 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.” Such a requirement “could prompt the government not to pursue potentially valuable intelligence-gathering activities under FISA.”

Judge Bates’s second concern goes to timing: “[M]erely determining in every case whether or not [the bill] requires designation of a special advocate, and, if so, whether such designation would be appropriate under the circumstances, . . . is itself likely to add significantly to the FISA courts’ overall workload and could impair the courts’ ability to complete their work in a timely fashion.”

Finally, the letter invokes a series of ill-defined constitutional concerns arising from both the insertion of a special advocate into proceedings before the FISA Court, and from the mechanism for appellate review—through certification of questions to the FISA Court of Review. Strangely, the letter doesn’t articulate what any of those concerns are; it merely refers to a CRS Report for the former, and suggests, opaquely, that the appellate certification provisions are “potentially inconsistent with the requirements of Article III.” But, the letter stresses, “we identify these concerns not meaning to opine as to their validity, but rather to identify where there could be confusion and administrative burden while they are being resolved or if the provisions are invalidated.”

II.  Why Judge Bates’s Concerns Are Unavailing

As explained below, there is something fundamentally troubling about the spirit of Judge Bates’s letter–and the extent to which it purports to speak “on behalf of the Judiciary.” But before turning to those concerns, it’s worth stressing why, even on the merits, Judge Bates’s objections are unavailing.

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? Judge Bates doesn’t say, nor does he offer any examples in which security cleared private counsel who have had access to classified information have unlawfully disclosed such information. Why would FISA proceedings be any different in this regard from, say, the Guantánamo habeas litigation? And insofar as the concern stems from reliance upon unclassified summaries, how is the Senate bill any different from the well-established rules under the Classified Information Procedures Act (CIPA)?

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? 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.

Finally, as for the constitutional concerns, I’ve addressed why both sets of them fail to persuade ad nauseam (with Marty Lederman in this post, and in exchanges with Orin Kerr over @ Lawfare); interested readers should refer to those discussions. For present purposes, it suffices to note a pair of ironies: With regard to the concerns that arise from inserting a special advocate into FISC proceedings themselves, the compromises that Judge Bates, among others, have fought for actually mitigate those concerns insofar as the special advocate in the Senate bill is really just an amicus curiae (again, whose appointment can be avoided merely through an exercise of unreviewable discretion by the FISC judge). And the (surmountable) concerns that Judge Bates alludes to with regard to the appellate certification provisions only arise because some, like Judge Bates, vigorously objected to provisions that would have made it much easier for the special advocate to appeal adverse FISA Court decisions directly.

In other words, Judge Bates doth protest too much.

III.  The Role of Federal Judges in the FISA Reform Discussion

Finally, aside from their debatable substance it’s worth noting two troubling optical features of the concerns raised by Judge Bates in his most recent letter: First, they have exceedingly little to do with the promotion of efficient judicial administration, and thus seem far afield of the kind of feedback that “the Judiciary” should be providing on pending legislation. As noted above, Judge Bates’s first two concerns go to how the proposed reforms would impose burdens on the Executive Branch, not the courts. Indeed, why is it remotely the concern of the courts whether a legislative reform might “prompt the government not to pursue potentially valuable intelligence-gathering activities under FISA”? As citizens, judges may think such a reform unwise; as judges, I have a hard time seeing how that objection is an appropriate one for them to make. And the third set of concerns–that the proposed reforms might be unconstitutional–are even more out of place in this context, since they only impact judicial administration to the extent that any litigation challenging the constitutionality of new rules would; and, even more disturbingly, appear to prejudge the merits of such challenges.

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. And yet, as Judge Bates himself wrote back in his January 13 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).

It’s only in the subsequent letters that Judge Bates has dropped this (helpful) explanation, and claimed to speak “on behalf of the Judiciary.” But whether or not these are matters on which it is appropriate for any federal judge to make their views publicly known, Judge Bates should at least be far clearer about exactly on whose behalf he is writing these letters–and by what process he has obtained their consent.

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.

In the Wall Street Journal story disclosing the most recent letter (which provoked this post), my friend Ben Wittes is quoted as saying that the Senate bill represents a “compromise involving the Obama administration, civil-liberties groups, industry and a lot of senators, but didn’t involve the courts. The courts are dissenters from this compromise.” Judge Bates may be a “dissenter” from this compromise; but his letter offers no evidence supporting Ben’s broader proposition.

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Ben’s quote is telling in one other regard: This bill is not just any old piece of legislation; it’s a package of reforms some of which were themselves provoked by concerns about the inadequacies of the judicial review provided by the FISC. Whether or not the charge that the pre-Snowden FISC was a “rubber stamp” for the government is a fair one, the animating idea behind a “special advocate” is to increase the quality and robustness of the litigation before the FISC–not just to ensure that the government is better held to account for potentially erroneous legal interpretations, as civil liberties groups demand; but also to lend that much greater legitimacy to decisions upholding the authorities the government seeks. This latter point may have a lot to do with why President Obama has openly supported the idea of a special advocate–and why his Administration has apparently signed off on the language to that effect in the Senate bill.

With that in mind, consider again Ben’s point that “The courts are dissenters from this compromise.” Whether or not Ben is right that it’s the “courts” who are dissenting, and not just Judge Bates, the larger point is how that underscores the urgency of the entire reform project. After all, how much can we really trust the FISC to check the Executive Branch on its own if its judges are so invested in defending the Executive Branch from reforms to which the Executive Branch does not even object? When asked for comment by the Wall Street Journal, Judge Bates’s spokesperson said “his letter speaks for itself.” Yes, it really does.

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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).