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Judge Warns Proposed Safeguards Could Hamper Surveillance Court Obama to Place Some Restraints on Surveillance
(about 1 hour later)
Washington — A leading Federal District Court judge has waded into the debate over National Security Agency eavesdropping and data collection, warning that several of the major reforms proposed by lawmakers and a presidential review group would have a negative “operational impact” on the Foreign Intelligence Surveillance Court. WASHINGTON — President Obama will issue new guidelines on Friday to curtail government surveillance, but will not embrace the most far-reaching proposals of his own advisers and will ask Congress to decide some of the toughest issues, according to people briefed on his thinking.
In a letter made public on Tuesday, Judge John D. Bates urged Congress and President Obama to not alter Chief Justice John G. Roberts Jr.'s unilateral power to select which judges will sit on the court, or to create a public advocate with “independent authority to intervene at will” in the court’s cases to provide adversarial views to the Justice Department’s briefs. Mr. Obama plans to increase limits on access to bulk telephone data, call for privacy safeguards for foreigners and propose creation of a public advocate to represent privacy concerns at a secret intelligence court. But he will not endorse leaving bulk data in the custody of telecommunications firms nor will he require court permission for all so-called national security letters seeking business records.
Judge Bates also objected to the group’s recommendations that so-called national security letters— administrative subpoenas allowing F.B.I. agents to obtain records about communications and financial transactions without judicial involvement — be placed under court oversight, saying the move would “drastically” expand the court’s caseload. The emerging approach, described by current and former government officials who insisted on anonymity in advance of Mr. Obama’s widely anticipated speech, suggested a president trying to straddle a difficult line that will placate civil liberties advocates without a backlash from national security agencies.
And Judge Bates raised concerns about proposals to require greater public disclosure of the surveillance court’s secret rulings interpreting privacy laws and the Constitution. Releasing opinions with the classified operational details redacted, or freestanding unclassified summaries of its legal interpretations, he wrote, “is likely to promote confusion and misunderstanding.” The result seems to be a speech that leaves in place many current programs, but embraces the spirit of reform and keeps the door open to further changes later.
Judge Bates is the director of the Administrative Office of the United States Court and a former presiding judge on the surveillance court, and he said that Chief Justice Roberts had designated him to “act as a liaison” for the judiciary on matters related to the surveillance court. He said he had consulted with several other judges, and portrayed his concerns as collective. The decision to provide additional privacy protections for non-American citizens or residents, for instance, largely codifies existing practices but will be followed by a 180-day study by the director of national intelligence about whether to go further. Likewise, instead of taking the storage of bulk data out of government hands, as recommended by a review panel he appointed, Mr. Obama will leave it in place for now and ask lawmakers to weigh in.
The letter was dated Jan. 13 and made public by the office of the chairwoman of the Senate Intelligence Committee, Dianne Feinstein of California, who has been an outspoken skeptic about some of the proposed reforms. President Obama is expected to give a speech on Friday endorsing some of the reforms, rejecting others, and issuing some executive orders to make any changes he supports that do not require separate legislation. The blend of decisions, to be outlined in a speech at the Justice Department and in a presidential guidelines memorandum, will be Mr. Obama’s highest profile response to the disclosures about the National Security Agency made in recent months by Edward J. Snowden, a former N.S.A. contractor who has fled to Russia.
It is highly unusual for judges to weigh in on political and public policy debates involving the executive and legislative branches. Judge Bates said his concerns should be understood as limited to ensuring the smooth operation of the court, and that the comments were not “intended as expressions of support or opposition to particular introduced bills.” But as intelligence officials have sorted through Mr. Obama’s evolving position, they have been divided about how significant his adjustments will be.
“Our comments focus on the operational impact on the courts from certain proposed changes, but we do not express views on the policy choices that the political branches are considering,” he wrote. “We are hopeful, of course, that any changes will both enhance our national security and provide appropriate respect and protection for privacy and civil-liberties interests. Achieving that goal undoubtedly will require great attention to the details of any adjustments that are undertaken.” Some officials complained that the changes will add layers of cumbersome procedure that will hinder the hunt for potential terrorists, while others expressed relief that Mr. Obama is not going further and confidence that they could still work within the new guidelines without sacrificing much.
Still, Judge Bates’ comments went beyond worries about making sure that any increase in the court’s workload as a result of changes would be matched by a commensurate increase in the surveillance court’s resources, and came close to taking a stand against making particular changes being discussed in the current debate. “Is it cosmetic or is there a real thumb on the scale in a different direction?” asked one former government official who worked on intelligence issues. “That’s the question.”
For example, several lawmakers and the review group have proposed changing the way the 11 judges are selected to serve staggered, seven-year terms on the surveillance court. Current law gives that power solely to the Supreme Court’s chief justice; 10 of the 11 currently serving judges, all selected by Chief Justice Roberts, were appointed by Republican judges. The White House said the president’s review is incomplete and would not comment Tuesday.
The review group report, noting that pattern as troubling and observing that Republican- and Democratic-appointed judges “sometimes have divergent views, including on issues of privacy, civil liberties, and claims of national security,” suggested changing the process to instead have the chief judge of each appeals court circuit select several judges for the court to ensure greater diversity of viewpoints. The developments came as the nation’s judiciary waded into the highly charged debate. In a letter made public on Tuesday, a judge designated by Chief Justice John G. Roberts Jr. to express the views of the judicial branch warned that some changes under consideration would have a negative “operational impact” on a secret foreign intelligence court.
But, Judge Bates wrote, that would be a bad idea because it is “important that the process for the selection” of judges to the surveillance court and a small review panel that hears any appeals of its rulings “remain both expeditious and fully confidential; the chief justice is uniquely positioned to select qualified judges for those courts.” Judge John D. Bates, a former chief judge of the Foreign Intelligence Surveillance Court, urged Mr. Obama and Congress not to alter the way the court is appointed or to create an independent public advocate to argue against the Justice Department in secret proceedings. Any such public advocate, he wrote, should instead be appointed only when the court decided one was needed.
Judge Bates also expressed skepticism about creating a public advocate to argue against the Justice Department in secret surveillance proceedings, in which the judges currently hear only from the government and there is no one to appeal if the government wins a case. Judge Bates objected to the workload of requiring that courts approve all national security letters, which are administrative subpoenas allowing the Federal Bureau of Investigation to obtain records about communications and financial transactions without court approval.
He wrote that it made no sense for a public advocate to participate in “run-of-the-mill” individualized wiretap requests, and that adding such a role “would substantially hamper the work of the courts without providing any countervailing benefit in terms of privacy protection.” And he raised concerns about greater public disclosure of court rulings, arguing that unclassified summaries would be “likely to promote confusion and misunderstanding.”
And even when the court is undertaking a more complex review of constitutional law and surveillance statutes because the government has asked it to sign off on a secret program — like the now-revealed program in which the N.S.A. is keeping records about all domestic phone calls - he said any public advocate should be called in only at the court’s request. The judge’s letter, addressed to the Senate Intelligence Committee, was released as all five members of Mr. Obama’s surveillance review group testified Tuesday before the Judiciary Committee, seeking support for their recommendations.
Giving such an official freestanding ability to intervene at will, he wrote, even when the judges are not interested in hearing from him, could be disruptive to their work. Illustrating the cross-pressures on the president, the advisers argued for the appointment of the independent version of a public advocate, a recommendation the president is expected to follow, though it is not clear how he will structure the position.
“We admire Judge Bates and respect his views,” said Cass Sunstein, a Harvard Law School official and former Obama White House official who served on the review panel. “We respectfully disagree with that one, on the ground that the judge sometimes is not in the ideal position to know whether a particular view needs representation and that in our tradition, standardly, the judge doesn’t decide whether one or another view gets a lawyer.”
The judge’s objection to the proposal on national security letters dovetailed with that of the F.B.I. director, James B. Comey, who argued it would be inefficient to have to go to a judge each time records were sought. Mr. Obama has decided not to require court approval in every case, but might still require it in some circumstances, according to one administration official.
Mr. Obama will cut back on the number of people whose phone records can be examined by the N.S.A. through its bulk data program. Currently the agency can scrutinize call records of people as far as three steps, or “hops,” removed from a suspect. Mr. Obama’s review panel proposed limiting searches to people just two steps removed. He is also likely to cut down the number of years such data can be retained; currently it is deleted after five years.
But the president will not, at least for now, back the panel’s suggestion that telecommunications firms keep such data and the government be allowed to tap into those databases only when necessary.
Intelligence officials complained it would be inefficient to have to go to multiple companies, so some officials proposed creating an independent consortium to store the data instead.
Mr. Obama has decided against keeping the data at the private providers because they do not want that responsibility, officials said, and no independent consortium currently exists. As a result, he will ask Congress to determine the best way to store the data.
He also appears likely to reject the idea of separating code breakers and code makers. Some critics of the N.S.A. were disturbed that the agency’s encryption team charged with bolstering online security systems against hackers was working with the team that tries to penetrate computer systems used by terrorists.
The letter by Judge Bates was accompanied by 15 pages of often specific comments about possible surveillance reforms.
It is highly unusual for judges to weigh in on public policy debates involving the other two branches of government, but Judge Bates, the director of the Administrative Office of the United States Court, said that Chief Justice Roberts designated him to “act as a liaison” and that he consulted other judges.
The judge emphasized that his comments were meant to address smooth operation of the court and were “not intended as expressions of support or opposition to particular introduced bills.”
Still, his comments went beyond workload issues. He objected to a proposal by Mr. Obama’s review group to take away Chief Justice Roberts’s sole power to appoint the 11 judges of the surveillance court and have them picked instead by the chief judges of the various appeals courts.
Ten of the 11 current judges were appointed by Republican presidents, and critics have called for more diversity. “The chief justice is uniquely positioned to select qualified judges,” Judge Bates argued.