Surveillance: NSA Warrantless Wiretapping

Views from the Judiciary on Possible Surveillance Reforms

By Wells Bennett
Tuesday, January 14, 2014, 2:04 PM

Yesterday, U.S. District Judge John Bates sent over two documents----a summary cover letter and a more detailed analysis---to the Senate Intelligence Committee.  Delivered in Bates's capacity as the Director of the Administrative Office of the U.S. Courts, and derived from both his past service as the FISC's Presiding Judge, and discussions with other current and former FISC and FISCR judges, the materials set forth the "views of the Judiciary" regarding proposed surveillance changes.

Those views quite likely will influence the debate over surveillance reform. Here's a flavor:

The following is a summary of our key comments:

  • It is imperative that any significant increase in workload for the Courts be accompanied by a commensurate increase in resources.
  • 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.
  • The participation of a privacy advocate is unnecessary---and could prove counterproductive---in the vast majority of FISA matters, which involve the application of a probable cause or other factual standard to case-specific facts and typically implicate the privacy interests of few persons other than the specified target. 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, as the advocate would be unable to communicate with the target or conduct an independent investigation. 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; indeed, such pervasive participation could actually undermine the Courts’ ability to receive complete and accurate information on the matters before them.
  • In those matters in which an outside voice could be helpful, it is critical that the participation of an advocate be structured in a manner that maximizes assistance to the Courts and minimizes disruption to their work. An advocate appointed at the discretion of the Courts is likely to be helpful, whereas a standing advocate with independent authority to intervene at will could actually be counterproductive.
  • Drastically expanding the FISC’s caseload by assigning to it in excess of 20,000 administrative subpoena-type cases (i.e., NSLs) per year---even with a corresponding injection of resources and personnel---would fundamentally transform the nature of the FISC to the detriment of its current responsibilities.
  • It is important that the process for selection of FISC and Court of Review judges remain both expeditious and fully confidential; the Chief Justice is uniquely positioned to select qualified judges for those Courts.
  • In many cases, 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.
  • Care should be taken not to place the Courts in an “oversight” role that exceeds their constitutional responsibility to decide eases and controversies.

I wouldn't be surprised at all if we heard more about this during this afternoon's Senate Judiciary Committee hearing---at which members of the President's Review Board will testify about their proposed tweaks to U.S. surveillance practices.  Nor would I be awfully surprised if this also figured in the President's upcoming announcement, on Friday, of which Review Board proposals he plans to support.