Foreign Intelligence Surveillance Court jurists are all against a presidential task force's ideas for increasing transparency and oversight.
Judges
on the federal government's secret surveillance court have strongly rejected
any proposed changes to their review process, putting unexpected pressure on
the White House on Tuesday as President Obama prepares a speech aimed at
bolstering public confidence in how the government collects intelligence.
In
a blunt letter to the House and Senate intelligence and judiciary committees,
U.S. District Judge John D. Bates made it clear that the 11 judges on the
Foreign Intelligence Surveillance Court are united in opposition to key
recommendations by a presidential task force last month aimed at increasing
transparency and judicial oversight, including at least one that Obama has
tentatively endorsed.
The
surveillance court judges have not previously gone public so it is difficult to
gauge how much weight their opposition carries. But their skepticism adds to a
list of hurdles for those advocating significant reforms following former
National Security Agency contractor Edward Snowden's massive disclosures of domestic
and foreign surveillance programs.
Most
surprisingly, Bates said the judges opposed adding an independent advocate for
privacy and civil liberties to the court's classified hearings, saying the
proposal was "unnecessary — and could prove counterproductive."
Obama
and some intelligence officials have publicly signaled support for creating an
adversarial legal process in the court, which now hears only from government
lawyers, and aides have suggested the president will create an advocate's
position or call for legislation to do so in a speech scheduled for Friday
morning at the Justice Department. The proposal was widely viewed as among the
least controversial of the changes under consideration at the White House.
But
Bates disagreed sharply, arguing that "the participation of an advocate
would neither create a truly adversarial process nor constructively assist the
courts in assessing the facts, as the advocate would be unable to communicate
with the target or conduct an independent investigation."
Adding
an advocate to "run-of-the-mill FISA matters would substantially hamper
the work of the courts without providing any countervailing benefit in terms of
privacy protection," he added.
Bates
is the former presiding judge of the court, which was created under the 1978
Foreign Intelligence Surveillance Act and reviews applications from
intelligence and law enforcement agencies for classified surveillance warrants
and programs. He now serves as liaison for the federal judiciary on FISA
issues.
Bates
said he had consulted with current and former judges on the secret court and
one above it that reviews its decisions, and thus speaks for them. His
three-page letter was accompanied by 15 pages of judicial comments and legal
footnotes.
The
judges were uniformly against making the secret judicial review more
transparent, a practice that Obama has espoused. "Releasing freestanding
summaries of court opinions is likely to promote confusion and
misunderstanding," Bates wrote.
His
letter said the judges also opposed broadening the selection process of FISA
court judges, who now are chosen only by the chief justice of the Supreme
Court. Obama has not signaled whether he is considering changing that system to
add diversity to the FISA court.
Not
unexpectedly, the judges announced their reluctance to drastically expand their
caseload by being required to review and approve so-called national security
letters. The FBI currently uses the letters and needs no warrant to issue
administrative subpoenas to gain access to customer records from telephone,
credit card and other companies more than 20,000 times a year.
Even
if they were given extra resources, requiring a judge's approval for each
subpoena "would fundamentally transform the nature of the [court] to the
detriment of its current responsibilities," Bates wrote.
Senior
FBI and intelligence officials already had lined up in opposition to requiring
warrants for the national security letters, and Obama has shown no sign of
planning to upend that system.
The
most sweeping recommendation by the presidential task force would force the NSA
to stop collecting and archiving Americans' telephone toll records, and shift
responsibility for the vast database back to the telephone companies or a
private entity. White House aides have said Obama is strongly considering some
variation of the proposal, which would require action by Congress.
But
telecommunications officials and some members of Congress are sharply opposed
to ordering private companies to hold records of billions of American telephone
calls for government use because of potential legal liability and the cost.
At
a Senate Judiciary Committee hearing Tuesday, some lawmakers worried whether
the records would be secure in private hands.
Among
those who testified was Cass Sunstein, a former Obama advisor who served on the
task force. Asked about Bates' opposition to naming a privacy advocate,
Sunstein told the committee: "We respectfully disagree with that one.… In
our tradition, the judge doesn't decide whether one [side] or another gets a
lawyer."
Privacy
activists don't expect Obama to announce major reforms in his speech Friday,
said Fred Cate, a law professor at Indiana University.
"I
don't think anyone is expecting this to be good news," he said. Given that
Snowden's leaks to the media have caused an uproar overseas, "I don't see
that this is likely to get him out of hot water with Europe or with the privacy
community."