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.”

What We're Following See More »
PROCEDURES NOT FOLLOWED
Trump Not on Ballot in Minnesota
2 days ago
THE LATEST
MOB RULE?
Trump on Immigration: ‘I Don’t Know, You Tell Me’
2 days ago
THE LATEST

Perhaps Donald Trump can take a plebiscite to solve this whole messy immigration thing. At a Fox News town hall with Sean Hannity last night, Trump essentially admitted he's "stumped," turning to the audience and asking: “Can we go through a process or do you think they have to get out? Tell me, I mean, I don’t know, you tell me.”

Source:
BIG CHANGE FROM WHEN HE SELF-FINANCED
Trump Enriching His Businesses with Donor Money
4 days ago
WHY WE CARE

Donald Trump "nearly quintupled the monthly rent his presidential campaign pays for its headquarters at Trump Tower to $169,758 in July, when he was raising funds from donors, compared with March, when he was self-funding his campaign." A campaign spokesman "said the increased office space was needed to accommodate an anticipated increase in employees," but the campaign's paid staff has actually dipped by about 25 since March. The campaign has also paid his golf courses and restaurants about $260,000 since mid-May.

Source:
QUESTIONS OVER IMMIGRATION POLICY
Trump Cancels Rallies
4 days ago
THE LATEST

Donald Trump probably isn't taking seriously John Oliver's suggestion that he quit the race. But he has canceled or rescheduled rallies amid questions over his stance on immigration. Trump rescheduled a speech on the topic that he was set to give later this week. Plus, he's also nixed planned rallies in Oregon and Las Vegas this month.

Source:
‘STRATEGY AND MESSAGING’
Sean Hannity Is Also Advising Trump
5 days ago
THE LATEST

Donald Trump's Fox News brain trust keeps growing. After it was revealed that former Fox chief Roger Ailes is informally advising Trump on debate preparation, host Sean Hannity admitted over the weekend that he's also advising Trump on "strategy and messaging." He told the New York Times: “I’m not hiding the fact that I want Donald Trump to be the next president of the United States. I never claimed to be a journalist.”

Source:
×