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
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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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