FISC jurists: White House reforms too “cumbersome”

National Security Operations Center floor in 2012. Photographer unknown.

Three days before Obama’s highly anticipated speech on Friday, January 17, and amidst further revelations of the National Security Agency’s surveillance powers, former Federal Intelligence Surveillance Court officials are raising a ruckus. Judge John D. Bates—former presiding judge of the FISC and current director of the Administrative Office of the United States Court—has raised a number of criticisms of possible White House reforms to the National Security Agency’s surveillance program. In a letter to Dianne Feinstein, chair of the U.S. Senate Select Committee on Intelligence, Bates outlines a number of concerns regarding President Barack Obama’s blueprint for a so-called “overhaul” of the NSA surveillance apparatus, including but not limited to:

• An increase in workload for the courts through the addition of thousands of “administrative subpoena-type cases per year”
• The court’s work being hampered and/or undermined by the presence of an outside privacy advocate (a court-appointed advocate, on the other hand, could be “helpful”)
• Promoting “confusion and misunderstanding” by releasing “freestanding summaries of Court opinions”
• The possibility of the court being placed in “an ‘oversight’ role that exceeds their constitutional responsibility to decide cases and controversies”

Bates’ concerns about workload are real, but, as Marcy Wheeler points out, Bates effectively “object to anything that might make FISC more of a … court.”

But what is especially interesting is that as Bates et al. defend the secrecy of FISC and the necessity of such secrecy to national security, it’s also rebuked the NSA’s spying activities. (Bates, I should note, is not known for typically working “against” the system—cf. his rejection of the Valerie Plame lawsuit against those who outed her as a CIA agent or of the lawsuit against the U.S. government for the assassination of Anwar al-Awlaki.)

For instance, in August 2013, news that the court had rebuked the NSA in 2011 for misleading it on domestic surveillance broke, including an 85-page opinion document on the matter. Large swarths of it are, naturally, redacted, although there is the interesting case of the sentence “It likely raises no Fourth Amendment problem” in a sea of black (p. 27). In another document, the court notes that prior pen register/trap and trace (PR/TT)—information on what that is here—orders “exceeded the scope of previously authorized acquisition” (p. 2). The NSA, notes Bates, has been doing pretty poorly at compliance.

Given the NSA’s inability to abide by the very judicial arm that is meant to keep it in check, why the resistance to an overhaul? Perhaps such resistance fits into Bates’ pattern of ruling in favor of ever-expanding government powers. Perhaps such resistance comes from the assumption, as Judge William H. Pauley III believes, that these programs would be able to stop attacks such as 9/11. (There’s no evidence gathering more metadata would have prevented the 2001 attacks, Lawrence Wright notes.) At the same time, there does seem to be some realization that something has gone wrong. Given the NSA’s continued inability to recognize even the most loose system of checks and balances, the need for an overhaul of sorts seems obvious. To “paraphrase” Mark, if your secretive data collection program causes you to overstep, shouldn’t you cut it off?