Judge: Arguing NSA Privacy Concerns in Court Is ‘Unnecessary’

A sign stands outside the National Security Administration (NSA) campus in Fort Meade, Md., Thursday, June 6, 2013.
National Journal
Dustin Volz
Jan. 14, 2014, 10:29 a.m.

Pla­cing a pri­vacy ad­voc­ate on the ju­di­cial body re­spons­ible for ap­prov­ing the Na­tion­al Se­cur­ity Agency’s for­eign sur­veil­lance or­ders is “un­ne­ces­sary” and po­ten­tially “coun­ter­pro­duct­ive,” a fed­er­al dis­trict court judge wrote to Con­gress this week.

The judge’s com­ments come amid a de­bate con­cern­ing the prop­er role of the For­eign In­tel­li­gence Sur­veil­lance Court, which over­sees the gov­ern­ment’s sur­veil­lance-war­rant re­quests on for­eign ter­ror­ist sus­pects. Pri­vacy ad­voc­ates as­sert that the court is a “rub­ber stamp” for NSA sur­veil­lance or­ders, but D.C. Dis­trict Court Judge John Bates took ex­cep­tion to that ar­gu­ment Tues­day.

“The par­ti­cip­a­tion of a pri­vacy ad­voc­ate is un­ne­ces­sary — and could prove coun­ter­pro­duct­ive — in the vast ma­jor­ity” of court mat­ters, wrote Bates, also a former presid­ing judge on the FISA Court. “Giv­en the nature of FISA pro­ceed­ings, the par­ti­cip­a­tion of an ad­voc­ate would neither cre­ate a truly ad­versari­al pro­cess nor con­struct­ively as­sist the Courts in as­sess­ing the facts.”

The let­ter, re­leased Tues­day in con­junc­tion with more-ex­tens­ive com­ments on pro­posed re­forms to the court, was sent to Sen­ate In­tel­li­gence Com­mit­tee Chair­wo­man Di­anne Fein­stein and oth­ers. It comes ahead of Pres­id­ent Obama’s planned speech on Fri­day ad­dress­ing calls for NSA re­form. Fein­stein has been one of the most vo­cal de­fend­ers of the NSA’s sur­veil­lance-gath­er­ing tech­niques since Ed­ward Snowden began leak­ing doc­u­ments about the scope of the pro­grams last June.

The White House has been tight-lipped about what re­forms the pres­id­ent will of­fer, but the in­stall­a­tion of a pub­lic ad­voc­ate on the FISA Court is viewed as one of the most likely con­ces­sions. Aides have re­peatedly in­sisted that Obama is still mak­ing up his mind after a flurry of meet­ings with law­makers, pri­vacy ad­voc­ates, and tech com­pan­ies last week.

Bates, who is also the dir­ect­or of the Ad­min­is­trat­ive Of­fice of the U.S. Courts, con­tin­ued: “Ad­voc­ate in­volve­ment in run-of-the-mill FISA mat­ters would sub­stan­tially hamper the work of the Courts without provid­ing any coun­ter­vail­ing be­ne­fit in terms of pri­vacy pro­tec­tion or oth­er­wise.”

The FISA Court cur­rently hears ar­gu­ments from the gov­ern­ment only in fa­vor of sur­veil­lance, which NSA crit­ics con­tend has led to a lack of fair and vig­or­ous ju­di­cial over­sight of the agency’s col­lec­tion and use of bulk phone and In­ter­net metadata.

Bates also ar­gued that “pub­lic dis­clos­ure of Court de­cisions is not likely to en­hance the pub­lic’s un­der­stand­ing of FISA im­ple­ment­a­tion if the dis­cus­sion of clas­si­fied in­form­a­tion with­in those opin­ions is with­held. Re­leas­ing freest­and­ing sum­mar­ies of Court opin­ions is likely to pro­mote con­fu­sion and mis­un­der­stand­ing.”

He ad­di­tion­ally cau­tioned that the Court should not be placed in an “over­sight” role that “ex­ceeds their con­sti­tu­tion­al re­spons­ib­il­ity to de­cide cases and con­tro­ver­sies.”

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