Spy Court Judge: These Aren’t the Reforms You’re Looking For

As President Obama is mulling a series of changes to how the National Security Agency keeps tabs on the world’s communications, the former top judge of the secret court that has approved much of that surveillance made an unusual public appeal Tuesday: keep the process just how it is.

John Bates, the former presiding judge of the Foreign Intelligence Surveillance Court, warned against a proposal to include in the court’s proceedings an outside privacy and civil liberties advocate, who might take positions counter to the government when it seeks permission to collect huge swaths of Internet traffic, email addresses, and phone communications. Currently, only government lawyers appear before the court.

An outside attorney "would substantially hamper the work" of the court, as well as an appeals panel that also meets in secret, if that person were allowed to weigh in on "run-of-the-mill" matters, Bates wrote. That was a direct shot at a proposal by a presidentially appointed panel to include such an advocate. President Obama has taken the panel’s recommendations as a guidepost for surveillance changes he will announce on Friday.

Bates’ critique, which was released publicly on Tuesday by Sen. Dianne Feinstein, the chair of the Senate Intelligence Committee, was a rare example of a sitting judge weighing in on controversial policy issues that the administration and Congress are still considering. Lawmakers have also proposed adding an outside lawyer to join the court’s proceedings when judges are asked to make novel interpretations of law that affect how the government is allowed to monitor Americans.

"The participation of a privacy advocate is unnecessary and could prove counterproductive in the vast majority" of legal issues before the court, which involve case-specific facts and typically don’t implicate the privacy of anyone other than the subject of surveillance, Bates said. The judge said that if the court were allowed to seek outside counsel on its own, the process would work smoother. But if a standing attorney were allowed to weigh in at will on the court’s proceedings, it would be too disruptive. Bates also questioned how valuable the lawyer’s contributions would be since he or she would be unable to consult with the target of surveillance and would have no ability to conduct an investigation of the facts of the case.

The judge’s comments amount to a broadside of the review panel’s recommendations and arrives at a time when the White House appears uncertain what modifications it will make to NSA surveillance. A senior U.S. intelligence official told Foreign Policy that Obama has not yet communicated his decision to agency leaders. He is expected to make some modifications to the most controversial of NSA’s programs, including the collection and storage of Americans phone records and monitoring of foreign leaders’ communications.

Bates also seemed to suggest that, despite the president and many members of Congress’ claims to the contrary, the surveillance courts don’t actually oversee NSA surveillance in the context of checks and balances.

"Care should be taken not to place the Courts in an ‘oversight’ role that exceeds their constitutional responsibility to decide cases and controversies," Bates wrote, charting out a narrower role for the court than have many other government officials. In justifying collection of Americans’ phone records and the use of blanket authorizations to vacuum up large amounts of communications data, administration officials and lawmakers have stressed that the court’s approval and oversight of NSA’s operations amounts to a check by the judicial branch.

Bates currently serves as the Director of the Administrative Office of the United States Courts. He acts as a liaison between Congress and the judicial branch on particular issues that affect the surveillance courts.

Separately Tuesday, the Senate Judiciary Committee heard testimony from the five members of the panel that reviewed NSA surveillance. The panel made 43 recommendations for the president’s consideration. But nearly the entire hearing focused on the NSA’s collection of Americans’ phone records and avoided other controversial agency programs, such as its efforts to undermine encryption standards.

The panel members said they unanimously agreed that the government should not hold onto those records, and that they should be stored either with phone companies or a third party. Lawmakers and privacy experts who met last week with Obama and his chief counsel have said that the president is likely to make some modifications to that program. But it’s not a foregone conclusion that he will instruct the data be stored somewhere other than NSA, they said.