Sen. Patrick Leahy proposed a tepid solution to the fact that we have a secret court in the United States of America that approves searches and seizures, despite also having a Constitution that says we can’t have secret courts, and we must have due process. But hey, that’s such old news as to be unworthy of mention.
Nobody gets too hot and bothered by the FISA Court anymore, as absurd and outrageous an idea as it was when it was first created, or first disclosed, Once something flagrantly wrong has been around for a while, it just becomes another piece of the landscape of America. You know, amber waves of grain and such.
But we learned, h/t Snowden, that the government had this tendency to be less than forthright to the court when securing authorization to do bad, bad stuff. Rather than call into question the very existence of such a secret court in a constitutional democracy, someone came up with the compromise idea of having an adversary to the government, for those rare occasions when the government presented “a novel or significant interpretation of the law” that might benefit from, say, a point of view that wasn’t the government’s.
Judge John Bates, who has had some good moments on the FISA Court, has taken it upon himself to be the spokesman for the judiciary by informing Sen. Leahy that creating the post of advocate against the government (which, as we all know, speaks for all of us, the People’s lawyer), is a bad idea. Judge Bates felt so strongly that he sent Patrick a letter explaining how introducing an adversary into the mix of a court system conceived with, and designed for, adversarial challenges, could be a disaster:
In fact, the participation of the special advocate could actually hinder the ability to obtain complete and accurate information. Introducing an adversarial special advocate in FISA proceedings creates the risk that representatives of the Executive Branch who, as noted, have a heightened duty of candor in ex parte FISA court proceedings would be reluctant to disclose to the courts particularly sensitive factual information, or information detrimental to a case, because doing so would also disclose the information to an independent adversary. This reluctance could diminish the court’s ability to obtain all relevant information, thus degrading the quality of its decisions. Alternatively, it could prompt the government not to pursue potentially valuable intelligence-gathering activities under FISA.
Judge Bates’ faith in the “heightened duty of candor” of DoJ lawyers is truly inspiring, particularly coming from a judge who castigated the executive branch for lying to the Court. How cool is it that he believes they’ve changed, that nothing like that could ever happen again. Because this is ‘Merica, and we don’t do such things. At least not in our secret courts.
When the notion of an independent advocate was introduced to offer an alternative to the government rolling in solo, chatting up the FISC judges who, as everyone knows, are inherently skeptical of the government, it didn’t strike me as a sufficient response.
After all, the nature of the guys and gals who get appointed to such posts as Official FISC Enemy of the State don’t tend to be people like me. Rather, I picture them having perfect official pedigrees, former DoJ turned Biglaw white collar “defense lawyers” who specialize in corporate investigations types. You know, the sort of people one can trust with classified information. Not like me. Not like you either, probably. We’re not the sort of folks who get appointed to anything important. We don’t play well with others.
It must be wrong, however, for Judge Bates to fear someone in the room who is so untrustworthy, so likely to cause the Executive Branch of the United States of America to “be reluctant to disclose to the courts particularly sensitive factual information, or information detrimental to a case.”
Because the government freely gives the FISC all the negatives to its position, to its requests for a warrant for everything that’s ever happened everywhere ever, now. And because the sorts of guys who get appointed by the President, and confirmed by the Senate as they’re being babysat by the truly good and fine people from the FBI and DoJ during the tense questions to their integrity and intellect, and whether they will serve their nation with honor and distinction so that they get a painted picture on the wall.
After all, if the government is reluctant to give the FISC the bad stuff along with the evidence and information that supports their requests, it could be “diminish the court’s ability to obtain all relevant information, thus degrading the quality of its decisions.” Or, the Court might reject a government request for lack of evidence to justify it?
After all, it’s not like the FISC has rubber stamped every warrant the government has sought. In fact, it has rejected .03%, a grand total of 11 of more than 33,900 warrants failed to make the cut. Does this sound like a court that needs a contrary voice? Does this sound like a court that can’t challenge the government on its own?
With Judge Bates’ letter, Senator Leahy will face a tough road ahead. After all, what politician wants to run for re-election as the guy who voted to let Al Qaeda have a lawyer inside our American secret court? That would be downright un-American, and if we can’t trust our own government, our Executive Branch and Judicial Branch, to stand firm for our constitutional rights, then who can we trust?