President Obama is expected to call on Friday, in unveiling a package of proposed surveillance reforms, for establishing a public advocate to argue before the secretive Foreign Intelligence Surveillance Court on behalf of privacy and civil liberty concerns.
However, in a letter this week, former FISC Chief Judge John Bates (photo) urged against creating such a public advocate, according to the New York Times, saying the advocate should rather be appointed when the court found it necessary.
“Given the nature of [Foreign Intelligence Surveillance Act] proceedings, the participation of an advocate would neither create a truly adversarial process nor constructively assist the Courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation,” Judge Bates said, according to Reuters. If there were broad participation in the court by a public advocate it could, he warned, “actually undermine the Courts’ ability to receive complete and accurate information on the matters before them.”
Judge Bates was designated by U.S. Chief Justice John Roberts Jr. to represent the views of the U.S. judiciary.
Obama’s five surveillance review advisers testified before Congress on Tuesday. One of them, law professor Cass Sunstein of Harvard, said, “We admire Judge Bates and respect his views.” He added, “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.”