A Response to Judge Bates’ Letter on FISA Court Reform

A judge that served on the secretive court that authorizes U.S. government surveillance issued a letter raising concerns with a new Senate bill to reform NSA surveillance. In the letter, Judge John Bates – formerly on the Foreign Intelligence Surveillance Court (FISC) – argues that the FISC reforms proposed in Sen. Leahy’s recent USA FREEDOM Act (S.2685) would degrade the court’s relationship with the government and increase the court’s workload.

Currently, the FISC considers sweeping government surveillance requests in secret, with only the government advocating before it. Several current laws – such as Section 215 of the PATRIOT Act – give the FISC limited discretion to evaluate surveillance requests, which ultimately led to the government obtaining surveillance authority that is overbroad and illegal. Sen. Leahy’s USA FREEDOM Act would pave the way for independent lawyers to advocate for civil liberties before the FISC – subject to several restrictions.

Judge Bate’s concerns are not compelling reasons to eliminate the FISC reforms in USA FREEDOM.

CDT supports Leahy’s USA FREEDOM Act, in part because the bill proposes an independent voice for civil liberties at the FISC while preserving flexibility for the court. With respect to the FISC’s key role in ensuring the government abides by constitutional and statutory requirements, Judge Bate’s concerns are not compelling reasons to eliminate the FISC reforms in USA FREEDOM.

[Check out CDT’s comparison of the Senate and House versions of USA FREEDOM here.]

Bates: Special advocates would result in greater government secrecy

Sen. Leahy’s USA FREEDOM Act would require the FISC to appoint a panel of independent experts – which the bill refers to as “special advocates” – to serve as amicus curiae to the court. The bill would require the special advocates to push for “appropriate” legal interpretations that “advance individual privacy and civil liberties.”

Judge Bates argues that special advocates with a mandate to argue in favor of civil liberties would naturally be adversarial to the government. Bates points out that the FISC itself works privately with the government to ensure surveillance requests meet legal standards for privacy, and that these interactions depend on the government’s candor and openness to the court. Bates argues that introducing an adversarial special advocate would prompt the government to withhold information detrimental to a case and “hinder the FISC’s ability to obtain complete and accurate information.”

Bates assumes that the government would stand in opposition to a privacy and civil liberties advocate. Yet if the government is indeed adverse to privacy and civil liberties, that actually demonstrates greater need for an independent voice arguing in favor of those principles. One hopes that – at least going forward – the government will incorporate stronger civil liberties protections into surveillance requests, and therefore would work with a special advocate and the FISC to safeguard privacy rather than in opposition.

An advocate dedicated to privacy and civil liberties considerations seems to be exactly what the FISC needs.

It is unsettling to hear Bates express fear that the government would withhold information from the FISC in order to impede a special advocate. However, it has happened before. In an October 2011 FISC ruling, Judge Bates himself stated the FISC was “troubled that the NSA’s revelations […] mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.” Given this pattern, an advocate dedicated to privacy and civil liberties considerations seems to be exactly what the FISC needs.

The bill would require the special advocates to advance individual civil liberties “as appropriate.” The special advocate proposed by USA FREEDOM would also need to obtain a security clearance, would be strictly forbidden from divulging classified information, and would participate at the discretion of the FISC. If the government is indeed adverse to “appropriate” privacy and civil liberties considerations, and if the candor between the government and the FISC is so fragile even in a secure setting, then that is precisely why an independent and reasoned voice for civil liberties is needed at the FISC.

Bates: Give FISC control over “independent” advisors

As part of the special advocates’ mandate to advance individual civil liberties, Leahy’s USA FREEDOM Act would provide the special advocates with access to the records associated with the surveillance request. CDT found the FISC reforms in the House version of USA FREEDOM deficient largely because of the absence of a privacy mandate and lack of access to information for the amicus.

Judge Bates’ letter expresses a preference for an amicus with no mandate to argue for civil liberties, and over which the FISC maintains tight control. Bates favors the FISC reforms in the House-passed version of USA FREEDOM, under which the FISC decides when to call upon the amicus, what information is relevant for the amicus to review, and the scope of the amicus’ participation. The FISC, as a court, already inherently possesses the power to appoint amicus curiae in this fashion.

As it happens, the Senate version is not dramatically different. The Senate version of the USA FREEDOM Act also gives the FISC flexibility in appointing and using special advocates. The bill allows the FISC to choose who serves as a special advocate, in consultation with the Privacy and Civil Liberties Oversight Board, and the FISC may decline to use a special advocate if the court determines (in writing) that it would be inappropriate to use him or her. In fact, the USA FREEDOM Act does not actually require the FISC or the government to provide special advocates with privileged information – the bill gives the FISC and the government discretion to provide this information.

Compromising further, as Judge Bates suggests, would render the special advocate reforms ineffective.

Two key differences between the House and Senate bills are that Senate version includes the mandate to argue for civil liberties and explicitly provides for the ability of the special advocates to access records relevant to the advocates’ work. An amicus with no mandate to argue for civil liberties could well argue in favor of even broader government surveillance. And just as Bates notes that the FISC needs complete and accurate information to issue quality rulings, the special advocates likewise need broad access to the records to provide the FISC with well-informed input.

The special advocate provisions in the Senate bill are already a major compromise. Compromising further, as Judge Bates suggests, would render the special advocate reforms ineffective.

Bates: More FISC oversight of surveillance would overwhelm the FISC

Judge Bates’ letter expresses concern that participation of special advocates would slow down the FISC’s review of time-sensitive surveillance requests. Bates argues that, given the tight deadlines of many surveillance operations, it is impractical to expect the FISC to determine whether to appoint a special advocate to a case, allow the special advocate to provide meaningful input, and potentially obtain the assistance of additional outside experts.

However, Leahy’s USA FREEDOM Act gives the FISC flexibility here too. The bill specifically allows the FISC to decline participation of the special advocate if it would interfere with the current legal requirement that the court act as expeditiously as possible. In his letter, Bates acknowledges this provision, but claims that the time it would take to make even this determination would impair the court.

We believe the answer to this problem is not to block special advocates, but for Congress to provide substantially greater funding to the FISC for more staff that can handle the court’s workload. There is no benefit for civil liberties or national security to having a FISC that is underfunded and overwhelmed, especially given that the FISC works on matters of such extreme global sensitivity. An overburdened FISC may react slowly to surveillance requests, encouraging the government to seek broader requests in order to avoid repeatedly going through the FISC. An overburdened FISC may not have the bandwidth to thoroughly weigh the privacy and civil liberties issues raised by surveillance requests. In these respects, the special advocates can ease the workload of the FISC and the government by aiding both in the principled consideration of privacy.

Leahy’s USA FREEDOM Act touches on the issue of funding as well. The bill includes a clause authorizing the appropriation of money as necessary to carry out the special advocate provisions. The use of these funds would be under the supervision of the Director of the Administrative Office of the U.S. Courts, who is currently, in fact, Judge John Bates.

Ally or obstacle?

The Senate’s USA FREEDOM Act includes prudent FISC reforms to prevent future overreaches of government surveillance authority. To achieve this goal, we view the special advocates’ mandate to protect privacy, access to the record, and regular participation as crucial. Bates’ letter is already positioning the special advocate as an opponent of the government and a hindrance to the FISC, when all parties should instead cooperate in furtherance of both security and civil liberties.

Leahy’s USA FREEDOM Act provides significant flexibility to the FISC without rendering the special advocates ineffective. If the FISC and the government exploit that flexibility by marginalizing the special advocates, they would be doing a disservice to both themselves and a public calling for surveillance reform. A lot will depend on how the FISC and the government work with the special advocates, but that is not a reason for Congress to preemptively exclude independent, informed civil liberties perspectives from surveillance considerations. CDT urges Congress to pass Sen. Leahy’s USA FREEDOM Act without weakening its FISC reforms.

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