Judge Bates Is Just Protecting Us From Ourselves

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?

H/T Techdirt


7 thoughts on “Judge Bates Is Just Protecting Us From Ourselves

  1. pitchfork

    Your summation of FISC is perfect. Having been a young man at the time of the Church Committee hearings, I didn’t really understand the implications of it’s connection to FISC up to the Snowden revelations. Now I understand what an insidious idea this was. However, you have really nailed it to the wall. And now that it has come out the government just tried to coerce the Judge in Jewel to secretly remove a DOJ attorney’s statement(or portion) because of possible leak of classified information, I’m now convinced more than ever, my government has now destroyed any legitimacy they once had. Only a tyrannical wannabe regime would try to do this. And that is what they just proved they are.

      1. lawrence kaplan

        Judge Bates with his “well intentioned” letter
        Has just become our official pace-setter
        For leaving our liberty behind in the dust.
        His motto is: In government we trust.

  2. adam kadmon

    but doj apologized didn’t that make it all better? i think it went something like this:
    Oh, I wish I was in the land of cotton,
    Old times there are not forgotten,
    Look away, look away, look away___ Land.

    In ___ Land, where I was born in,
    early on one frosty mornin’,
    Look away, look away, look away ___ Land.

    I wish I was in____, Hooray! Hooray!
    In ____ Land I’ll take my stand
    to live and die in ____.
    Away, away, away down south in ____.
    Away, away, away down south in ____

    Ole Missus marry “Will the weaver”
    Willum was a _____ deceiver
    Look away! Look away! Look away!

    But when he put his arm around ‘er,
    He smiled fierce as a forty pounder,
    Look away! Look away! Look away!
    ______ Land

    His face was sharp as a butcher’s cleaver
    But that did not seem to grieve ‘er
    Look away! Look away! Look away!
    ______ Land

    Ole Missus acted the foolish part
    And died for a man that broke her heart
    Look away! Look away! Look away!
    _______ Land

    Now here’s a health to the next ole Missus
    An’ all the gals that want to kiss us;
    Look away! Look away! Look away!
    _______ Land

    But if you want to drive ‘way sorrow
    Come and hear this song tomorrow
    Look away! Look away! Look away!
    _______ Land

    There’s buckwheat cakes and Injun batter,
    Makes you fat or a little fatter
    Look away! Look away! Look away!
    _______ Land

    Then hoe it down and scratch your gravel,
    To ______’s Land I’m bound to travel,
    Look away! Look away! Look away!
    _______ Land

  3. lawrence kaplan

    What is particularly ironic about Judge Bates’ concern that the government’s “heightened duty of candor in ex parte FISA court proceedings” might be impaired by introducing an adversarial procedure is that Judge Walton in his decision in Jewel vs. NSA noted that despite the government’s being “well aware, [that] it has a heightened duty of candor to the Court in ex parte proceedings,” it nevertheless tried to conceal relevant material and mislead both the plaintiffs and the court. Judge Bates’ unshakeable trust in the government’s faithfully carrying out its “heightened duty of candor” would be touching were it not so dangerous.

    1. SHG Post author

      That’s the “they suck now, so they could suck even worse later” argument. Kinda makes the judiciary look like powerless beggars. If only they had the power to refuse the government’s will, but safety first.

  4. John Barleycorn

    Make up your mind esteemed one.

    Chocolate or vanilla seems there is strawberry too.

    Lucky you!

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