Former Presiding Judge, John Bates, Makes Compelling Case to Eliminate FISA Court

As you read John Bates’ “comments” about the NSA Review Group’s recommendations, it’s worth keeping two things in mind about him:

  • He has a history of dismissing legally important cases out of caution — arguably excess caution — over getting involved in matters reserved for the political branches, a caution he did not exercise here.
  • In August 2011, after Bates asked NSA to tell him how many entirely domestic communications were being caught via upstream collection (and after Bates had told NSA domestic collection of US person data was only illegal if they acknowledged it), they did not provide the number. And he didn’t make them. He did however, in the same exchange, rubber stamp NSA’s authority to conduct back door searches into US person communications.

In other words, Bates has long been overly solicitous of Executive power, and contrary to some claims, his work on the FISC actually reinforces, rather than refutes, claims that the Court is a rubber stamp.

Perhaps it’s not surprising, then, that his comments actually make a fairly compelling — albeit unintentional — case for eliminating the FISC (at least for all its expanded uses since 2001) altogether.

Don’t get me wrong. I’m sympathetic to some of Bates’ stated concerns. The concerns about workload (which Bates raises in his first and second bullets, but relegates to his last paragraphs) are real, and have been recognized by a number of people in the FISC debate. Bates points to some real constitutional issues in constructing an advocate for the court (which, again, have been pointed out, with potential solutions, by others).

But ultimately Bates’ comments (which may also reflect the concerns of Chief Justice John Roberts, whose authority he invokes in commenting on FISC matters) object to anything that might make FISC more of a … court.

Consider his argument against a Special Advocate. He worries a special advocate would harm what he (the same guy who couldn’t get the government to divulge how many Americans are getting swept up in domestic upstream collection) claims is candor.

Perhaps most troubling, however, is our concern that providing an institutional opponent to FISA applications would alter the process in other ways that would be detrimnetal to the FISC’s timely receipt of full and accurate information. As noted above, the current process benefits from the government’s taking on — and generally abiding by — a heightened duty of candor to the Court. Providing for an adversarial process in run-of-the-mill, fact-driven cases may erode this norm of governmental behavior, thereby impeding the Court’s receipt of relevant facts. (As noted above, the advocate would rarely, if ever, serve as a separate source of factual information.) Instead, intelligence agencies may become reluctant to voluntarily provide to the Court highly sensitive information, or information detrimental to a case, because doing so would also disclose that information to a permanent bureaucratic adversary.

Even setting aside the number of times I’ve been able to find factual problems with claims made in the few FISC filings so far released (suggesting advocates could provide factual and technical details the government doesn’t want to), this is a tacit admission that the FISC is not considered a bureaucratic adversary by the government.

This is particularly troubling given that, as Bates portrays the process, the “FISC may request or receive information from the applicant informally through the legal staff” (which according to Judge Walton’s portrayal of the process, means via the phone). The only paper trail of the process, then, are (again relying in part on Walton) the written analysis of the FISC’s staff attorneys. Which would mean an advocate would require “broad access” to these “draft decisions and memoranda from legal staff,” would would violate “ethical canons and separation-of-powers principles,” in turn “infring[ing] on the independence of the judges’ decisionmaking.”

One reason Bates objects to a Special Advocate, then, is that the Government would have to write all its requests down, which might affect their candor.

If that isn’t already troubling, Bates’ observation that “even relatively routine national security investigations involve changing facts” raises additional concerns. Bates describes FISC judges making decisions on a sometimes undocumented set of moving facts, facts which the targets of such surveillance have never been permitted to see, much less challenge, in court.

Then there’s Bates’ stated worries about the problems an advocate would present for the FISA Court of Review (and again, some of this may reflect John Roberts’ concern, as SCOTUS is the ultimate court of appeal). Some of this, again, reflects resource concerns. But even those resource concerns — such as the possibility the FISCR would have “to hire its own staff” reveals that the FISCR relies on the same staffers who drive FISC decisions in the first place. It is not, as it turns out, an independent court of its own.

Which makes the Constitutional concerns raised by the wacky decisions of the FISC, starting with its secret redefinition of “relevance” (without even benefit of independent dictionary definitions), all the more urgent. There is no standing to challenge these issues outside of the courts; with the FISC structure, there is apparently no fully independent court of appeal. And the Chief Justice wants to keep it that way.

Which means part of what Bates is defending is the authority for a bunch of District Court Judges to serve as Appellate Judges for some of the most Constitutionally novel issues raised by national security.

Yet Bates also seems to be defending the Court’s ability to remain ignorant about some things the Executive does. He rejects any proposal to serve as an oversight check on the Executive (this is another concern I have some sympathy for). But he does so in a document including this disclosure raised in objection to requiring warrants to conduct back door searches. (Snoopdido noted this passage last night.)

Decisions about querying Section 702 information are now made within the Executive Branch. As a result, the Courts do not know how often the government performs queries of data previously acquired under Section 702 in order to retrieve information about a particular U.S. person. It seems likely to us, however, that the practice would be common for U.S. persons suspected of activities of foreign intelligence interest, e.g., engaging in international terrorism, so that the burden on the FISC of entertaining this new kind of application could be substantial.

Remember: Bates is the guy who first approved NSA and CIA’s use of these back door searches (relying in part on the prior 3-year history of FBI’s use of them). But he has apparently never gotten enough “candor” from the Executive — either before or after he approved this — to know how and how often the Executive is using these searches!

Then he goes on to explain that the Executive might need to use back door searches to get the content of Americans they can’t otherwise target under FISA.

For a variety of reasons, a U.S. person suspected of such activity may not otherwise be a FISA target. For example, there may be probable cause to believe that a U.S. person is engaged in international terrorism, but intelligence agencies may not have the ability to implement current forms of FISA collection against that person because of the person’s location or lack of information about particular facilities.

Granted, what Bates is describing is the use of reverse targeting to get around technical difficulties, not legal ones (though I wonder how he’s sure about the legal case if the government has never made it).

But it is reverse targeting, the use of a back door search to get to the US person content, without a warrant, via collection on another target. This is forbidden by the law. Yet he describes it as one reason why the FISC shouldn’t get involved in reviewing warrants for this kind of search, which (as he describes it) violates the law.

Against the background of admitting that the FISC doesn’t always require the government to write down its requests and that it doesn’t want to approve warrants for activity that by his description violates the statute because the government should be permitted to continue violating the statute, Bates then objects to the recommendations to eliminate bulk collection and provide more review of 215 and NSLs, in part because of the burdens they’d pose for the Court. Most curiously, Bates says that if reforms eliminated NSL gag orders, the government would begin to use Section 215.

Those changes would like result in the government’s decreasing its reliance on NSLs for records subject to such a disclosure requirement and instead bringing to the FISC more applications under Section [215] for production of such records, in order to avoid disclosure of such information to private parties.

If the government could still get bulk Section 215 orders, I agree, they might well use those instead.

But Jim Comey — to the extent he can be believed in comments that were clearly misleading — said he’d end up using grand jury subpoenas instead. So a guy with years of involvement in prosecuting terrorism cases at least claims that he not only could — but would prefer to — use grand jury subpoenas for this information over the FISC.

Which would alleviate the need to routinely eliminate gags, because review in any criminal proceedings would provide the kind of transparency and review necessary for such things (this is a point Peter Swire made in yesterday’s hearing).

The reason we need a FISC is because the government — often through inadequate notice to defendants — has succeeded in avoiding the kind of review courts normally bring. But John Bates reveals a number of ways in which the court that is supposed to be providing that review has failed to do so. And Jim Comey, at least, thinks some of this could move back to real courts.

So why not? Why not move this, with all the gags grand jury subpoenas get and the national security experience judges have acquired over the last decade and all the normal constitutionally required review process, back to normal Title III Courts?

I admit it. Bates makes an excellent case for eliminating the FISC case, at least for all the exotic bulk programs the government has been inventing in secret.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

19 replies
  1. joanneleon says:

    I don’t have any sympathy for the resources reasoning. With more than a decade of outrageous funding (now continued for at least two more years) for the Pentagon and intelligence community, Congress can come up with whatever funding is needed or this court.

    It’s pretty clear that Bates doesn’t want their little incompetent and casual so called court party to be changed. They like it the way it is.

  2. seedeevee says:

    “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.”” —

    It has been ruled “unnecessary” – no change for you.

  3. orionATL says:


    i couldn’t agree more.

    the god-damned pentagon war machine has had rivers, huge fucking rivers, of federal money diverted to it since 2002.

    if there was the will, and there is not, then the resources would be available, and, trivial by comparison to the resources waste, just the waste, that the intelligence community is responsible for due in part to the illegalities it has granted itself since 2002.

    oversight focusing on legal issues is in no way mutually exclusive with oversight for fiscal and operational efficiency.

  4. jerryy says:

    While the press reports from various sources (ehh, congressional leaks, etc.) that this secret court is supposed to oversee issuing warrants of some type, what does this court really do?

    This is a serious question.

    Is it a fig-leafed star chamber? People seem to disappear in this country all the time. Is it really a warrant issuing overseer as claimed?

    How do we know any answer is true enough to be acceptable?

  5. What Constitution? says:

    Even when they were trying to justify torture, it was very seldom that the PTB purported to rely upon the “it’s just soooo inconvenient to respect the law” justification, they at least tried to pretend there was some kind of “ticking time bomb” exigency to excuse their actions. Not here, not now. The head of the FISA court is all over how nice it is to be able to dispatch with annoying requirements like, oh, accountability, fairness, or the consideration of a presumptively accurate and reasonably complete basis for a decisionmaker to be “informed” before deciding. Just so darned confining. You’re absolutely right, EW, there might not be a better set of reasons to abolish the FISA court than the reasons Bates has itemized for maintaining it. In a world where things like the Rule of Law matters, of course.

  6. bloodypitchfork says:

    @ew…quote:”I admit it. Bates makes an excellent case for eliminating the FISC case, at least for all the exotic bulk programs the government has been inventing in secret.”unquote

    Good god ew, talk about twisting the knife. I’m just now understanding your methodology to driving it to the hilt with a quick twist for terminal effect. Who was your mentor?

  7. bloodypitchfork says:

    Gawdammit…I’ve been asking this for a week. IF, the NSL bullshit has already been ruled UNconstituional, how in the fuck can Judge Halfwit insist that adding any more burden above 20k NSL requests creates a substantial hinderance when the FISC shouldn’t even be receiving NSL requests in the first place?????? I mean..puhleeeeeeeeese..enlighten me so I can put this question aside. Other wise..WTF?

  8. Peterr says:

    The second bullet point is a quietly damning admission against interest as well:

    Some proposed changes would profoundly increase the Courts’ workload. Even if additional financial, personnel, and physical resources were provided, any substantial increase in workload could nonetheless prove disruptive to the Courts’ ability to perform their duties, including responsibilities under FISA and the Constitution to ensure that the privacy interests of United States citizens and others are adequately protected.

    Sounds to me like Bates is saying that there is SOOOO much surveillance going on that FISC and FISCR can barely keep up, and some of these changes would make constitutional oversight impossible.

    Sorry, but the amount of workload should not dictate the amount of constitutional protection. If anything, the argument goes the other direction. “If you want to get approval to do X, and you want it in the next 2 hours, then we have to have a larger staff and better coordination. If you don’t like it, tough. You can wait for the office to open at 9am, we’ll put your request at the bottom of the stack, and we’ll get to it when we get to it.” The constitution comes before the FISC’s workload.

    “Sorry we can’t provide real constitutional protection, but there’s just too much surveillance to keep up” is a cop-out, not a reasoned argument.

  9. Peterr says:

    Bullet point six is a nice bow at the feet of Chief Justice Roberts:

    It is important that the process for selection of FISC and Court of Review judges remain both expeditious and fully confidential; the Chief is uniquely positioned to select qualified judge for those courts.

    This presumes facts not in evidence, even when the accompanying discussion is included. The Director of the Administrative Office of the US Courts could assist other SCOTUS justices just as easily as Roberts.

    By Bates’ logic, we ought to remove the selection of all judges from the political branch.

    The argument about confidentiality is hilarious (see pp. 12-13).

    It has also happened from time to time that a judge being considered for service on one of the Courts is not ultimately selected because of issues arising from the mandatory background investigation. Knowledge of a problematic background investigation would be more widespread if more persons were involed in the selection process. The prospect of potential embarrassment — potentially for an individual would would continue to serve publicly for the remainder of her career as a sitting federal judge — might deter qualified judges from wanting to serve on the Courts.

    (We note in passing Bates’ use of the feminine pronoun when describing the hypothetical judge with a red flag on a security check. Sexism, much?)

    Is Bates seriously saying that embarrassment is the biggest thing to be concerned about when we have a sitting federal judge who can’t pass a background check? We wouldn’t want to do anything that might make that judge’s continued work more difficult?

    How about being concerned about the fact that this judge can’t pass a background check?

  10. Strangely Enough says:

    @Peterr: “any substantial increase in workload could nonetheless prove disruptive to the Courts’ ability to perform their duties”

    Too much rubber stamping.

    “responsibilities under FISA and the Constitution”

    Even a judge can add a laugh line or two.

  11. GKJames says:

    Judge Bates’s contentions give off whiffs of rotting red herrings as well as of arousal generated by the exclusive, secret, clubby nature of FISC world. He and the apparatus can snuggle and take care of business without interference from the messiness of democracy and accountability to the public. Nothing to see here, folks, move along; everything’s being taken care of. That an officer of the court continues to entertain the FISC construct in the first place boggles the mind. That he argues for the perpetuation of non-adversarial proceedings while deeming them to be legitimate activity by the Judiciary confirms the intellectual bankruptcy at the heart of the polity itself.

  12. earlofhuntingdon says:

    Perhaps Judge Bates confuses “changing facts” with “undocumented government assertions”.

    The former are real world facts, tied to reality, not Rovian inventions. DoJ lawyers, as officers of the court, would be required to perform the necessary and customary task of updating the court as and when the facts they rely upon change with circumstances. That process depends on the court doing its job, such as sanctioning those lawyers who fail to update the court in a timely manner.

    Judge Bates seems to think that that would land him in a political minefield and he’d rather not go there. I suggest that he reread his oath of office and those parts of the Constitution that refer to the separate powers of the judicial and executive branches.

    Undocumented assertions made by DoJ lawyers are unproven, unsubstantiated claims made by the government. These are apparently not subject to challenge by this court, let alone by nonexistent opposing counsel. They seem to be taken as true because the government said them. I suggest that Judge Bates reread the withering criticism that greeted Richard Nixon’s claim to David Frost that if the president does it, it can’t be illegal. By analogy, the government saying something is a fact does not make it so. It’s the court’s obligation to stand in for non-existent opposing counsel and challenge the authenticity of government claims.

    Unlike facts, undocumented assertions are “tied to reality” only in the sense that the government changes them as and when political conditions, polls, whistleblower revelations, and the like, require.

  13. earlofhuntingdon says:

    @Peterr: Bates’s concern about embarrassment suggests that he knows about a lot of hogwash the FISA court has accepted as fact. He’d rather not let that get about town. People might laugh at him; government types might accuse him of letting the team down by noticing how ill-washed are its undergarments.

  14. Peterr says:

    @earlofhuntingdon: Speaking of local impressions around town, the juxtaposition of Bates’ worries about overwork and the GOP’s belief that the DC circuit is overstaffed (and so no more judges need be confirmed there) is rather interesting. Could some of his “don’t increase our workload” stuff be aimed at bolstering the GOPs obstructionism of additional DC circuit judicial nominations?

  15. P J Evans says:

    That would be a really good reason for asking if he really supports the Constitution or if he prefers all the workings of government to be like cockroaches, in the dark.

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