Amendment 1451, the “Judiciary,” and FISA Reform

Ben’s post from late last night highlights, among other things, “Amendment 1451,” one of the proposed revisions to the USA FREEDOM Act (as passed by the House on May 13) that the Senate is set to consider in the coming days. Quoting from the internal Republican staff memo posted by Ben, Amendment 1451 apparently “provides that section 401 [the provision of the House bill that would create a “special advocate” qua amicus to appear opposite the government in the FISA Court] shall not have effect, and in its place creates a new section 110A in the underlying bill.” That provision, the memo provides, “basically reaffirms the inherent authority of a court to appoint amicus curiae to assist the court in its work.” [Note: Here’s the actual language of Amendment 1451.]

Why is such a radical amendment to a provision in the House bill that was negotiated very carefully so necessary? According to the memo, “Amendment 1451 is responsive to the judiciary’s continual opposition to the amicus structure of the USA Freedom Act,” as manifested in “a letter to Congress from the director of the Administrative Office of the U.S. Courts.”

Here’s the letter in question–from James Duff, who certainly is “the director of the Administrative Office of the U.S. Courts [AO]” (more on that in a moment). The letter is but the latest in a series of such missives–the previous iterations of which were all signed by Judge John D. Bates, former presiding judge of the FISA Court, in his previous capacity as Director of the AO.

As I’ve written at great length before both here and at Just Security (and as I elaborate upon below the fold), though, for three different reasons, these letters are utter bullshit–and, as a result, Amendment 1451 is, too.

First, let there be no question whether either Judge Bates or Director Duff actually is speaking on behalf of the judiciary; they’re not. Indeed, even the more nuanced argument–that, as Secretary of the Judicial Conference of the United States, they’re speaking on behalf of that body (which, by law, speaks for the courts on certain pending legislation and other matters when appropriate), is belied by then-Chief Judge Kozinski’s rather… blunt… August 14 letter to the Senate Judiciary and Intelligence Committees, in which he made quite clear that, as a member of the Judicial Conference (like all other chief circuit judges), “I have serious doubts about the views expressed by Judge Bates,” and “[i]nsofar as Judge Bates’s August 5th letter may be understood as reflecting my views, I advise the Committee that this is not so.”

But even if Judge Bates and Director Duff were only purporting to speak for the FISA Court (not that they viewed their mandate so narrowly), it’s worth emphasizing that several of its judges have made various public statements supporting even more robust participation by a “special advocate” than that provided by the USA FREEDOM Act (see, for example, this July 2014 op-ed in The Hill by Judge James Carr). Simply put, it’s not at all clear to me, and never has been, exactly who Judge Bates or Director Duff are speaking for. If anything is clear, though, it’s that it sure isn’t “the judiciary,” writ large.

Second, even if the AO, through Judge Bates or Director Duff, was speaking on behalf of the judiciary (and again, let’s be clear–they’re not), it’s not at all obvious that it would be either procedurally or substantively appropriate for them to do so. Here’s what I wrote back in August on the matter:

why is it remotely the concern of the courts whether a legislative reform might “prompt the government not to pursue potentially valuable intelligence-gathering activities under FISA”? As citizens, judges may think such a reform unwise; as judges, I have a hard time seeing how that objection is an appropriate one for them to make. And the third set of concerns [raised in Judge Bates’s August 5 letter]–that the proposed reforms might be unconstitutional–are even more out of place in this context, since they only impact judicial administration to the extent that any litigation challenging the constitutionality of new rules would; and, even more disturbingly, appear to prejudge the merits of such challenges.

Indeed, even a cursory persual of 28 U.S.C. § 331 leaves me hard-pressed to find any authority for the Judicial Conference (as a whole) to directly comment on pending legislation in Congress, as compared to recommending changes to court rules “to promote simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense and delay”–to the Supreme Court. In other words, even if Judge Bates and Director Duff were actually speaking for the judiciary, their concerns don’t appear to be appropriate ones for judges qua judges to have, or ones with respect to which the “judiciary” has statutory authority to so directly participate.

Third, and most importantly, even on the merits, the substantive concerns raised in these letters are, charitably, overstated. The Senate Republican staff memo quotes Director Duff’s letter’s focus on how participation of a “special advocate” would hinder the government’s candor before the FISA Court, and thereby present “greater challenges to the FISA Courts’ role in protecting civil liberties than does the lack of a non-governmental perspective on novel legal issues or technological developments.”

This argument is almost laughably silly. Here’s what I wrote in August in response to Judge Bates’s invocation of the very same concern:

Judge Bates offers no evidence in support of his claim that allowing a security cleared outside amicus to participate before the FISA Court will somehow affect the government’s duty of candor to the tribunal, or otherwise disrupt the (apparently quite congenial) relationship between the FISC and the relevant government stakeholders. Indeed, Congress has already provided for security cleared private counsel to participate in FISA Court proceedings in the contexts of applications under section 215 of the USA PATRIOT Actand section 702 of FISA (as amended by the FISA Amendments Act of 2008). Does Judge Bates object to those provisions, as well? If not, why would a security cleared special advocate be any different in this regard than a security cleared private lawyer for the recipient of a section 215 production order or section 702 directive? Judge Bates doesn’t say, nor does he offer any examples in which security cleared private counsel who have had access to classified information have unlawfully disclosed such information. Why would FISA proceedings be any different in this regard from, say, the Guantánamo habeas litigation? And insofar as the concern stems from reliance upon unclassified summaries, how is the [USA FREEDOM Act] any different from the well-established rules under the Classified Information Procedures Act (CIPA)?

So too, here. In his August letter (although not in Director Duff’s more recent note), Judge Bates wrote that he feared that having to provide a special advocate with access to at least some of the classified information upon which surveillance applications are based “could prompt the government not to pursue potentially valuable intelligence-gathering activities under FISA.” But if that‘s the objection, then, as I wrote back then, “it’s more than a little telling that the Executive Branch nevertheless supports the Senate bill. If this was really a genuine problem (indeed, some may well think that forcing such a choice is exactly the point), wouldn’t we expect to have heard about it from the intelligence community, the Justice Department, and/or the White House? That is to say, isn’t Judge Bates’s real objection here on behalf of the (apparently content) Executive Branch, and not the judiciary? Even the former FBI General Counsel has openly supported these kinds of reforms…”

And even if section 401 of the USA FREEDOM Act would “prompt the government not to pursue potentially valuable intelligence-gathering activities under FISA,” why is that a reason for the judiciary to oppose it???

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I don’t mean to belabor the point. If anything, as I suggested yesterday, section 401 of the House-passed USA FREEDOM Act is a terribly weak version of what should have been a very good (and unobjectionable) idea–allowing a security-cleared outside lawyer to participate in the tiny percentage of cases before the FISC that involve applications for anything besides individualized warrants (you know, the cases in which adversarial participation is already authorized).Part of why section 401 is so weak is because members of Congress have consistently allowed themselves to be snookered by (or have found it convenient to hide behind) the objections of the “judiciary.”

On the merits, though, these objections are patently unavailing. And they certainly aren’t the objections of the “judiciary.”