Op-Ed: Who Speaks for the Bench about Surveillance?

Name of Publication: 
National Law Journal
Publication Type: 
Monday, September 15, 2014

Click Here to Read on the National Law Journal Website

At the 11th hour, the Senate Judiciary and Intelligence Committee received an extraordinary letter from U.S. District Judge John Bates of Washington purporting to represent the federal judiciary. In it, Bates criticized the Senate proposal to reform the Foreign Intelligence Surveillance Act (FISA) court and implied support for the House version.

The Senate bill would create a permanent special advocate tasked with challenging the government’s presentations before the FISA court and is more protective of civil liberties and privacy than the House version. But whatever the merits of Bates’ concerns—and other judges have dissented from it—he most assuredly does not speak for the Third Branch.

Of course, there is nothing wrong with legislators receiving letters from interested parties, especially judges with expertise in the subject of the legislation. (I, too, weighed in on legislation when I was on the bench). 

But this letter was different. Bates was not only speaking as would any interested individual. Since he had been the chief judge of the FISA court, he had insights to share, although his perspectives relate to the very institution that the Senate bill seeks to reform, one that has been the subject of substantial criticism. What was troubling about Bates’ letter was its scope, claiming to speak for all federal judges.

Bates has been appointed by Chief Justice John Roberts to serve as director of the Administrative Office of the U.S. Courts, the body that administers the federal courts. It was created in 1939 to take the administration of the judiciary out of the Department of Justice. Its principal tasks were data collection and the creation of budgets and, while its duties have grown over the years, they remain administrative (dealing with such things as court reporters, interpreters, judicial pay, maintenance of judicial buildings, staffing etc.).

When members of Congress solicit the “judiciary’s” opinion they may write to the office’s director, but he has no authority to make policy for the federal judiciary. It is the Judicial Conference of the United States Courts, to which the AO director is only the “secretary,” that has that responsibility.

The Judicial Conference comprises the chief judges of each federal circuit and 12 district court judges. Its chairman is the chief justice of the United States. While the Judicial Conference is not remotely democratic in the traditional sense—it does not poll the hundreds of judges on whose behalf it speaks—it seeks to be a collegial body that at least offers some opportunity for consultation with 27 sitting federal judges.

While Bates notes that he has consulted with the chief justice and judges who are serving or have served on the FISA court, he acknowledges that the Judicial Conference has not had an opportunity to weigh in on these issues. And those other judges—such as those whom the chief justice has chosen not to appoint to the FISA court for whatever reason, but who may have listened to the reports about its work with alarm—surely need to be consulted.

Alex Kozinski, chief judge of the Ninth Circuit Court of Appeals and a member of the Judicial Conference, for example, has written to the Senate committee expressing “serious concerns” about the position taken by Bates and, significantly, the fact that he claimed he was speaking for the federal bench.

Bates’ comments, Kozinski noted, can at best be attributed only to Bates.

There are real concerns when a judge—particularly one charged only with administrative responsibilities—purports to speak for the entire bench on proposed legislation. It runs the risk of compromising judicial independence, forecasting the courts’ position on cases that could come before individual judges after the legislation is enacted. For example, while Bates’ letter hints darkly that there are “fundamental constitutional difficulties” with the Senate bill, he concedes—somewhat disingenuously—that he should not address them in any detail because they may one day be presented to the courts.

Moreover, a great deal of Bates’ letter focuses on the Senate proposals’ impact on the executive branch and the intelligence community. The Senate bill would burden the executive with more work and even delay the FISA court’s proceedings, he suggests. Worse yet, the executive may be reluctant to share information with an independent advocate—a troubling claim.

Bates’ concerns are belied by the support voiced by the Department of Justice and the president for the Senate proposal. Surely, the executive branch understands its own needs better than does Bates. Surely, the executive branch has confidence in the procedures that the FISA court would have in place for dealing with classified information, just as the courts that have dealt with other national security issues have had.

And surely, the executive would abide by what the law requires, notwithstanding Bates’ predictions about its “reluctance” to share information with a special advocate.

To the extent that Bates’ letter addresses the area of his responsibility, the effect of the proposals on the administration of the FISA court, the resources and procedural changes they may require, that is one thing. But it is the legislature’s job to decide whether those resource needs are outweighed by the bill’s heightened protections for civil liberties and privacy, particularly given the very troubling disclosures about the FISA Court in recent years.

Bates may well have views as the former chair of FISA court, but his opinion is one among many. He does not remotely speak for “the judiciary” on these matters. Nor should he. 

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