WASHINGTON — The U.S. judiciary told Congress on Tuesday it opposes the idea of having an independent privacy advocate on the secret Foreign Intelligence Surveillance Court, while members of Congress lauded the idea at a Capitol Hill hearing.
Speaking for the entire U.S. judiciary, U.S. District Judge John D. Bates sent a letter to the Senate Intelligence Committee saying that appointing an independent advocate to the secret surveillance court is unnecessary and possibly counterproductive, and he slammed other key reforms as adding too heavy a caseload to the secret court’s work. In FISA court hearings, judges only hear from the government seeking a spy warrant.
Bates said opening the proceeding to an advocate for privacy in general — who would never meet the suspect or be able to defend the charges against him — wouldn’t create the kind of back and forth seen in open criminal or civil court proceedings.
“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,” he wrote.
Members of the presidential task force that recommended such an advocate defended the proposal before the Senate Judiciary Committee, as did Chairman Patrick Leahy, D-Vt., during a hearing on the NSA’s surveillance programs Tuesday.
Cass Sunstein, a member of the Review Group on Intelligence and Communications Technologies, said the secret court should not be making decisions on law or policy without an opposition voice.
“We don’t think that’s consistent with our legal traditions,” Sunstein said. He also said that a public advocate would only be needed for a small number of cases because most FISA proceedings do not involve “issues of law or policy.”
Those competing points of view are playing out as President Barack Obama decides what changes he’ll back and unveil in a speech Friday to satisfy privacy, legal and civil liberties concerns over the NSA’s surveillance practices.