2014 01 15 NYT Judge Warns Proposed Safeguards Could Hamper Surveillance Court – NYTimes.com


Judge Warns Proposed Safeguards Could Hamper Surveillance Court

Washington — A leading Federal District Court judge has waded into the debate over National Security Agency eavesdropping and data collection, warning that several of the major reforms proposed by lawmakers and a presidential review group would have a negative “operational impact” on the Foreign Intelligence Surveillance Court.

In a letter made public on Tuesday, Judge John D. Bates urged Congress and President Obama to not alter Chief Justice John G. Roberts Jr.’s unilateral power to select which judges will sit on the court, or to create a public advocate with “independent authority to intervene at will” in the court’s cases to provide adversarial views to the Justice Department’s briefs.

Judge Bates also objected to the group’s recommendations that so-called national security letters— administrative subpoenas allowing F.B.I. agents to obtain records about communications and financial transactions without judicial involvement — be placed under court oversight, saying the move would “drastically” expand the court’s caseload.

And Judge Bates raised concerns about proposals to require greater public disclosure of the surveillance court’s secret rulings interpreting privacy laws and the Constitution. Releasing opinions with the classified operational details redacted, or freestanding unclassified summaries of its legal interpretations, he wrote, “is likely to promote confusion and misunderstanding.”

Judge Bates is the director of the Administrative Office of the United States Court and a former presiding judge on the surveillance court, and he said that Chief Justice Roberts had designated him to “act as a liaison” for the judiciary on matters related to the surveillance court. He said he had consulted with several other judges, and portrayed his concerns as collective.

The letter was dated Jan. 13 and made public by the office of the chairwoman of the Senate Intelligence Committee, Dianne Feinstein of California, who has been an outspoken skeptic about some of the proposed reforms. President Obama is expected to give a speech on Friday endorsing some of the reforms, rejecting others, and issuing some executive orders to make any changes he supports that do not require separate legislation.

It is highly unusual for judges to weigh in on political and public policy debates involving the executive and legislative branches. Judge Bates said his concerns should be understood as limited to ensuring the smooth operation of the court, and that the comments were not “intended as expressions of support or opposition to particular introduced bills.”

“Our comments focus on the operational impact on the courts from certain proposed changes, but we do not express views on the policy choices that the political branches are considering,” he wrote. “We are hopeful, of course, that any changes will both enhance our national security and provide appropriate respect and protection for privacy and civil-liberties interests. Achieving that goal undoubtably will require great attention to the details of any adjustments that are undertaken.”

Still, Judge Bates’ comments went beyond worries about making sure that any increase in the court’s workload as a result of changes would be matched by a commensurate increase in the surveillance court’s resources, and came close to taking a stand against making particular changes being discussed in the current debate.

For example, several lawmakers and the review group have proposed changing the way the 11 judges are selected to serve staggered, seven-year terms on the surveillance court. Current law gives that power solely to the Supreme Court’s chief justice; 10 of the 11 currently serving judges, all selected by Chief Justice Roberts, were appointed by Republican judges.

The review group report, noting that pattern as troubling and observing that Republican- and Democratic-appointed judges “sometimes have divergent views, including on issues of privacy, civil liberties, and claims of national security,” suggested changing the process to instead have the chief judge of each appeals court circuit select several judges for the court to ensure greater diversity of viewpoints.

But, Judge Bates wrote, that would be a bad idea because it is “important that the process for the selection” of judges to the surveillance court and a small review panel that hears any appeals of its rulings “remain both expeditious and fully confidential; the chief justice is uniquely positioned to select qualified judges for those courts.”

Judge Bates also expressed skepticism about creating a public advocate to argue against the Justice Department in secret surveillance proceedings, in which the judges currently hear only from the government and there is no one to appeal if the government wins a case.

He wrote that it made no sense for a public advocate to participate in “run-of-the-mill” individualized wiretap requests, and that adding such a role “would substantially hamper the work of the courts without providing any countervailing benefit in terms of privacy protection.”

And even when the court is undertaking a more complex review of constitutional law and surveillance statutes because the government has asked it to sign off on a secret program — like the now-revealed program in which the N.S.A. is keeping records about all domestic phone calls – he said any public advocate should be called in only at the court’s request.

Giving such an official freestanding ability to intervene at will, he wrote, even when the judges are not interested in hearing from him, could be disruptive to their work.