By Kyle C. Barry
AFJ Legislative Counsel
UPDATE, August 21, 2014: Prof. Steven Valdeck, who first raised concerns about Judge Bates’ letter, discussed below, has an update. He notes that Ninth Circuit Chief Judge Alex Kozinski—a member of the Judicial Conference, the federal judiciary’s policy-making body—has written to Senate Judiciary Committee Chairman Patrick Leahy, informing him that he has “serious doubts about the views expressed by Judge Bates,” and “[i]nsofar as Judge Bates’s August 5th letter may be understood as reflecting my views, I advise the Committee that this is not so.”
The ongoing effort to reform the secret court that approves government surveillance requests took a surprising turn when a former judge on the court wrote a letter opposing reform legislation. In that letter, Judge John D. Bates claimed to speak for the federal judiciary.
He does not.
At issue is the special court created by the Foreign Intelligence Surveillance Act. It’s commonly known as the FISA Court or the FISC. The court approves electronic surveillance applications made by the executive branch—such as those revealed by National Security Agency whistleblower Edward Snowden. Under current law, only the government is represented before the FISC, and there is no lawyer to advocate for those whose privacy rights are at risk. Unsurprisingly, the government has a better than a 99% success rate before the FISC.
To address these and other problems with the government’s surveillance authorities, Senator Patrick Leahy, D-Vt., recently introduced an updated version of the USA FREEDOM Act. His Senate bill unquestionably goes further to protect civil liberties and individual privacy than the House version of the same name passed in May.
The Senate bill would ensure an adversarial process in the FISC through a “special advocate” who “shall advocate, as appropriate, in support of legal interpretations that advance individual privacy and civil liberties.” Conversely, the House bill would leave in place the ex parte nature of FISC proceedings; it calls only for a panel of amicus curiae who would assist the court in certain cases, but would represent no one and would have no duty to oppose the government’s arguments. What’s more, the Senate bill would require the FISC to certify certain questions for appeal, thus allowing appeals not just on behalf of the government—which, as the only party that currently appears before the FISC, has always been able to appeal on the rare occasion it loses—but also on behalf of surveillance targets and “the interests of justice” generally.
The Senate bill is the product of lengthy negotiations between key Senators, the White House, intelligence gathering agencies, and others—a hard-fought compromise among many interested parties and a serious attempt to enact meaningful reform. But not everyone is on board. In a letter to the Chairmen and ranking members of the Senate Judiciary and Intelligence Committees, Judge Bates—a former FISC judge and director of the U.S. Court’s Administrative Office—wrote to oppose the more robust FISC reforms and to argue in favor of the weaker House-passed legislation.
Judge Bates’s letter is troubling not simply because he opposes basic reform to enhance the fairness of FISC proceedings, but because he purports to do so, in his words, “on behalf of the Judiciary.”
In a response published last week, law professor Steve Vladeck identified two fundamental problems with Judge Bates’s approach. First, Judge Bates provides no justification for his asserted authority to speak on behalf of the entire 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.
Given the absence of clear authority inherent in his position as AO director, Vladeck writes, “Judge Bates should at least be far clearer about exactly on whose behalf he is writing . . . and by what process he obtained their consent.”
Second, as Vladeck points out, “we know better.” That is, we already know that not all federal judges—indeed, not even all former FISC judges—believe that FISC reform should be limited to the modest House proposals. For example, Judge James Carr, who served on the FISC from 2002 to 2008, has publicly endorsed the use of a special advocate—noting that an amicus who participates solely for the court’s benefit “will not achieve true reform”—and has argued that “adversarial appellate review is crucial to increased confidence in the FISC and its work.”
With other FISC judges publicly supporting reform, Judge Bates’s letter will, at best, sow confusion among Senators left wondering as to the scope of his opinions.
This is not the first time that Judge Bates has responded to proposed surveillance reforms, though it is the first time he has claimed, without qualification, to speak for the entire judiciary. And he is doing so to oppose reform that even the executive branch—that is, the entity that depends on the FISC to grant surveillance applications—has agreed to. Thus, in Vladeck’s view, “the real takeaway from [Judge Bates’s] 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.”
Alliance for Justice agrees, and urges both the Senate and the House to quickly pass the FISC reforms in Senator Leahy’s version of USA FREEDOM.