122-23. It further recommends that a nondisclosure order “remain in effect for no longer than
180 days without judicial re-approval.” /d. at 123.

Practically all FISC orders of various types identify the target, either directly or by
disclosing target-specific information, such as a phone number the target uses. As we understand
long-standing Executive Branch classification practices, the government typically regards the
targets of counterintelligence or international terrorism investigations as classified while those
investigations are ongoing and for at least several years thereafter. Under an approach such as
the one recommended by the Review Group, we would anticipate that each application would be
accompanied by a request for a nondisclosure order and that practically all applications would
entail successive requests to extend those nondisclosure orders. This new form of request would
require the government to present, and the FISC to assess, facts and considerations that are
distinct from whether the proposed collection is warranted and U.S. person privacy interests are
adequately protected. Without arriving at a policy conclusion, we are skeptical that this proposed
new process would lead to greater public understanding of the implementation of FISA or other
tangible benefits, and whether any such benefits are commensurate with the burdens imposed by
entertaining a line of periodic requests to extend nondisclosure obligations for a large percentage
of current and former FISA targets.

Querying Section 702 Information: Section 702 of FISA concerns certain acquisitions of
foreign intelligence information targeting non-U.S. persons who are reasonably believed to be
outside the United States. Currently, the government may not target U.S. persons for acquisition
under Section 702, see § 702(b)(1), (3), but information about U.S. persons may still be obtained
(e.g., when a U.S. person communicates with a targeted non-U.S. person). Proposals have been
made to generally prohibit querying data acquired under Section 702 for information about
particular U.S. persons, with an exception for emergency circumstances and for U.S. persons for
whom a probable cause showing has been made.'? These proposals would engender a new set of
applications to the FISC. Decisions about querying Section 702 information are now made
within the Executive Branch. As a result, the Courts do not know how often the government
performs queries of data previously acquired under Section 702 in order to retrieve information
about a particular U.S. person. It seems likely to us, however, that the practice would be
common for U.S. persons suspected of activities of foreign intelligence interest, e.g., engaging in
international terrorism, so that the burden on the FISC of entertaining this new kind of
application could be substantial.!?

See, e.g., Review Group Report at 146 (recommending that such queries be allowed
“when the government obtains a warrant based on probable cause to believe that the United
States person is planning or is engaged in acts of international terrorism”).

® For a variety of reasons, a U.S. person suspected of such activity may not otherwise be

a FISA target. For example, there may be probable cause to believe that a U.S. person is engaged

in international terrorism, but intelligence agencies may not have the ability to implement current
forms of FISA collection against that person because of the person’s location or lack of

(continued...)

11


without providing any commensurate benefit in terms of privacy protection or
otherwise; indeed, such pervasive participation could actually undermine the
Courts’ ability to receive complete and accurate information on the matters before
them.

e In those matters in which an outside voice could be helpful, it is critical that the
participation of an advocate be structured in a manner that maximizes assistance
to the Courts and minimizes disruption to their work. An advocate appointed at
the discretion of the Courts is likely to be helpful, whereas a standing advocate
with independent authority to intervene at will could actually be
counterproductive.

e Drastically expanding the FISC’s caseload by assigning to it in excess of 20,000
administrative subpoena-type cases per year — even with a corresponding injection
of resources and personnel — would fundamentally transform the nature of the
FISC to the detriment of its current responsibilities.

e It is important that the process for selection of FISC and Court of Review judges
remain both expeditious and fully confidential; the Chief Justice is uniquely
positioned to select qualified judges for those Courts.

e In many cases, public disclosure of Court decisions is not likely to enhance the
public’s understanding of FISA implementation if the discussion of classified
information within those opinions is withheld. Releasing freestanding summaries
of Court opinions is likely to promote confusion and misunderstanding.

e Care should be taken not to place the Courts in an “oversight” role that exceeds
their constitutional responsibility to decide cases and controversies.

The adoption of many of the measures discussed herein would impose substantial new
responsibilities on the FISC and ultimately the Court of Review. For the Courts to meet such
new responsibilities effectively and with the dispatch often required by national security
imperatives, they would need to receive commensurate augmentation of resources. Depending
on what exactly is enacted, the augmentation may require increased legal or administrative staff,
additional judges or devotion of more of the current judges’ time to the work of the Courts,
appointment of magistrate judges to work on the FISC, and enhanced secure spaces and
communications facilities. The provision of some of these resources could well come at the
expense of the work of judges in their home districts and circuits, thereby negatively affecting the
operations of their respective federal courts.

We also wish to stress, however, that even significantly increasing resources will not
guarantee that all proposed changes will be successful. Giving new responsibilities to the Courts,
while also establishing more elaborate procedures for the Courts to follow, may actually detract
from their ability to identify and resolve the issues that are most critical to national security and
privacy interests. Thoughtful assessment of the advantages and disadvantages of proposed
changes is therefore crucial.


involvement in the FISA process occurs within the context of Article III’s cases or controversies
requirement. FISA currently respects those Article III limitations by contemplating FISC
involvement in the form of monitoring and enforcing compliance with FISC orders and
authorizations, i.e., within the context of FISC cases." To the extent that legislative proposals
would enhance FISC review of Executive Branch compliance within the context of a particular
FISC case, they are less likely to present constitutional difficulties. On the other hand, proposals
that would assign to the FISC duties that are disassociated from any case before it would
seriously risk exceeding constitutional limitations on the involvement of an Article III court in
Executive Branch operations.”°

Finally, in line with the foregoing discussion of other matters, if the FISC were to be
given a greater role in monitoring and enforcing Executive Branch compliance, it would require a
commensurate increase of its current resources to discharge those responsibilities effectively.

? See 50 U.S.C. §§ 1803(h) (“Nothing in this chapter shall be construed to reduce or
contravene the inherent authority of the [FISC] to determine or enforce compliance with an order
or rule of such court or with a procedure approved by such court.”); 1805(d)(3) (“At or before the
end of the period of time for which electronic surveillance is approved by an order or an
extension, the judge may assess compliance with the minimization procedures by reviewing the
circumstances under which information concerning United States persons was acquired, retained,
or disseminated.”); 1824(d)(3) (same for physical search).

20 See, e.g., Summers v. Earth Island Institute, 555 U.S. 488, 492 (2009) (Article III
limits the judicial power to deciding cases and controversies and, except “when necessary in the
execution of that function, courts have no charter to review and revise legislative and executive
action”); In re Sealed Case, 310 F.3d 717, 731 (FISA Ct. Rev. 2002) (FISC “may well have
exceeded the constitutional bounds that restrict an Article III court” by asserting authority over
“the internal organization and investigative procedures of the Department of Justice which are
the province of the Executive Branch (Article II) and the Congress (Article I)”) (per curiam).

15


In short, the burdens and complications arising from a full-time advocate who could elect
to participate (or seek leave to participate) in fact-intensive, run-of-the-mill cases, weighed
against the negligible benefits from involving an independent advocate in consideration of those
cases, strongly counsel against creation of such a position.

Perhaps most troubling, however, is our concern that providing an institutional opponent
to FISA applications would alter the process in other ways that would be detrimental to the
FISC’s timely receipt of full and accurate information. As noted above, the current process
benefits from the government’s taking on — and generally abiding by — a heightened duty of
candor to the Court. Providing for an adversarial process in run-of-the-mill, fact-driven cases
may erode this norm of governmental behavior, thereby impeding the Court’s receipt of relevant
facts. (As noted above, the advocate would rarely, if ever, serve as a separate source of factual
information.) Instead, intelligence agencies may become reluctant to voluntarily provide to the
Court highly sensitive information, or information detrimental to a case, because doing so would
also disclose that information to a permanent bureaucratic adversary. This reluctance could
diminish the Court’s ability to receive relevant information, thereby undermining the quality of
its decisions. In some cases, that reluctance could result in those agencies’ opting not to pursue
potentially valuable intelligence-gathering operations governed by FISA in order to protect
extremely sensitive intelligence methods or targets from disclosure to that adversary.’

6(...continued)
judge. Such materials are privileged communications under both ethical canons and separation-
of-powers principles and their disclosure to the advocate would seriously infringe on the
independence of the judges’ decisionmaking.

7 Some might suggest that an advocate who can engage across-the-board in FISA matters
would enhance public perception that the process is fair and takes into account privacy, as well as
national security, interests. Recent disclosures by the FISC and the Executive Branch have done
much to dispel the misperception that the FISC “rubber stamps” government requests. See, e.g.,
Review Group Report at 202 (“As illustrated by the [recently declassified] section 215 and
section 702 non-compliance incidents . . ., the FISC takes seriously its responsibility to hold the
government responsible for its errors.”); Letter of the Honorable Reggie B. Walton, FISC
Presiding Judge, to the Honorable Patrick J. Leahy, Chairman, Senate Committee on the
Judiciary (Oct. 11, 2013) (“During the three month period form July 1, 2013 through September
30, 2013, we have observed that 24.4% of matters submitted [to the FISC] ultimately involved
substantive changes to the information provided by the government or to the authorities granted
as a result of Court inquiry or action.”). Moreover, public action such as enhancing transparency
and modifying the substantive rules and standards governing intelligence collection (or
reaffirming current rules and standards after public examination and debate) would be more
likely to improve confidence in the FISA process than would introducing a new layer of secret
bureaucracy.


Communications Technologies (“Review Group”) has recognized,” most FISA cases are similar
to law enforcement applications for search warrants and Title III] wiretaps, which also are
considered ex parte. Providing for an advocate in the large majority of cases, then, would be
superfluous and would create the unusual situation in our judicial system of affording, at this
stage of the proceedings, greater procedural protections for suspected foreign agents and
international terrorists than for ordinary U.S. citizens in criminal investigations.

To be sure, genuinely adversarial processes, such as criminal or civil trials, provide an
excellent means of testing a party’s factual contentions. But introducing an advocate into the
FISA process would not produce that result. Advocates of the type put forward in various
proposals to change FISA would not actually represent a proposed target of surveillance or any
other particular client? For operational security reasons, such an advocate would not be able to
conduct an independent factual investigation, e.g., by interviewing the target or the target’s
associates. An advocate therefore would be of little, if any, assistance in evaluating the facts of
particular cases which, as noted above, is the heart of the FISC’s consideration in the large
majority of cases.

Indeed, we are concerned that proposals to create a full-time advocate with the discretion
to participate, or seek leave to participate, in any or all cases would impair rather than improve
the FISC’s ability to receive information and rule on applications in an effective and timely
manner. Enhanced resources would help the FISC overcome these impairments, but only to a
limited extent. In order to explain the reasons for these concerns, it is helpful to summarize how
the FISC operates.

When the FISC was created, it was assumed that it would
resolve routine and individualized questions of fact, akin to those
involved when the government seeks a search warrant. It was not
anticipated that the FISC would address the kinds of questions that
benefit from, or require, an adversary presentation[;] . . . however,
the FISC is sometimes presented with novel and complex issues of
law. The resolution of those issues would benefit from an
adversary proceeding.

Liberty and Security in a Changing World: Report and Recommendations of the President’s
Review Group on Intelligence and Communications Technologies (Dec. 12, 2013) (“Review
Group Report’) at 203 (emphasis added). The Review Group further acknowledged that
“[b]ecause the number of FISA applications that raise novel or contentious issues is probably
small, the Advocate might find herself with relatively little to do.” Id. at 204.

> See, e.g., Review Group Report at 200 (recommending creation of a “Public Interest
Advocate to represent privacy and civil liberties interests” before the FISC).

4


In our view, some proposals that have been made — especially those that would create a
full-time independent advocate to oppose a wide range of government applications before the
Courts — present substantial difficulties that would not be resolved by simply increasing the
Courts’ resources. We anticipate that this form of advocate participation would not only be
cumbersome and resource-intensive, but also would impair the FISC’s ability to receive relevant
information, thereby degrading the quality of its decisionmaking. We turn first to this question.

Proposals for a Special Advocate to Appear Before the Courts

The vast majority of FISC matters are ex parte requests by the government for search
warrants, electronic surveillance orders, production of records or pen register/trap-and-trace
orders. Every day, United States district courts receive dozens of such requests in criminal
investigations and rule on them in an ex parte manner, with no party present except the
government. The FISC process is very similar to the one employed by the district courts in these
criminal matters.

Consistent with this well-established procedure for entertaining requests of this nature,
FISA does not currently provide a means for the FISC to solicit the assistance of non-
governmental entities in considering issues presented by such requests. Moreover, except in the
rare situation where substantial information about an ongoing case has been declassified,' non-
governmental individuals and entities now lack the information needed to seek leave to
participate as amici curiae and to assist the FISC or Court of Review in resolving difficult legal
or technological issues. An effort to address these narrow concerns would not be objectionable,
as long as it does not burden Court operations in the large majority of cases where there is no
need for a quasi-adversarial process.

Recent public debate has focused on matters such as NSA’s bulk collection of call detail
records under Section 501 of FISA, codified at 50 U.S.C. § 1861, and the government’s
acquisition of information pursuant to Section 702 of FISA, codified at 50 U.S.C. § 1881a. Such
matters, however, comprise only a small portion of the FISC’s workload, measured cither by
number of cases or allocation of time. In all but a small number of matters, the FISC’s role is to
apply a probable cause or other factual standard to target-specific sets of facts and to assess
whether the government’s proposed minimization procedures are adequate under the particular
circumstances. The authorizations sought in the large majority of cases do not implicate the
privacy interests of many U.S. persons because the collections at issue are narrowly targeted at
particular individuals or entities that have been found to satisfy the applicable legal standards.
Nor, except in a small handful of cases, do such matters present novel or complex legal or
technical issues. Accordingly, as the President’s Review Group on Intelligence and

' See In re Application of the Federal Bureau of Investigation for an Order Requiring the
Production of Tangible Things, Memorandum Opinion and Order, Docket No. BR 13-158 (FISA
Ct. Dec. 18, 2013), where the FISC authorized a non-governmental advocacy group to file an
amicus brief addressing the bulk telephony metadata collection program.

3


supplementation. This process of keeping the FISC and the advocate apprised of changing
circumstances over a longer period of time would be cumbersome and time-consuming.

This prolonged period of consideration in routine cases would also complicate the
assignment of matters to FISC judges because such proceedings would likely extend beyond a
judge’s normal duty week. The more cases in which an advocate is involved, the more likely it
would be that the Court would have to modify its current practice of having each FISC judge sit
for one week at atime. A different approach, requiring a judge to engage with FISC matters for
longer periods, is likely to require more time away from judges’ home districts, to the detriment
of their regular district court work.

The difficulties of such a process would be exacerbated by the need to interact on equal
terms with the applicant and the advocate. In order for the FISC to abide by the procedural and
ethical requirements that apply in adversarial proceedings, and for the advocate to appear on
equal footing with the applicant, the FISC would have to ensure that the advocate was involved
in all such interactions in any case in which the advocate may participate (or, if the advocate
must seek leave to participate from the FISC, perhaps only in those cases where such a request is
pending or has been granted). We expect that the logistical challenges of administering such a
three-way process for more than a handful of cases would be considerable. And even if it were
appropriate under the terms of a specific enactment to limit the involvement of the advocate in
such interactions to cases where the advocate has sought or received leave to participate, the
FISC may well need to ensure that the advocate, upon entering a matter, becomes fully apprised
of any interactions that have already occurred.’

At an institutional level, there are difficult policy, and potentially constitutional,>
questions regarding how an advocate would fit within existing governmental structures. The
Review Group recognized that where to house the advocate presents a “difficult issue” and came
to no particular recommendation on this point. See Review Group Report at 204-05. Some
proposals for an advocate may also compromise judicial independence.

4 If the advocate and an applicant have a dispute about what information the advocate
should receive, then the FISC may be required to resolve collateral, discovery-type issues, which
would place new forms of demands on the resources of the Court and create the potential for
delays that would impact national security.

* See Congressional Research Service, Introducing a Public Advocate into the Foreign
Intelligence Surveillance Act’s Courts: Select Legal Issues (Oct. 25, 2013) at 8-14 (discussing
issues under the Appointments Clause).

® Some proposals would grant the advocate broad access, not only to government
pleadings and Court decisions, but also to Court material relevant to those decisions. Such broad
access could be understood to encompass draft decisions and memoranda from legal staff to a
(continued...)


ADMINISTRATIVE OFFICE OF THE
UNITED STATES COURTS

HONORABLE JOHN D, BATES

Director WASHINGTON, D.C. 20544

January 13, 2014

Honorable Dianne Feinstein
Chairman

Select Committee on Intelligence
United States Senate
Washington, DC 20510

Dear Chairman Feinstein:

To better address the continuing interest from several Congressional committees in the
views of the Judiciary regarding potential changes to foreign intelligence surveillance law and
practice, I am writing to provide the following perspectives on certain proposals currently under
consideration.

Traditionally, the views of the Judiciary on legislative matters are expressed through the
Judicial Conference of the United States, for which I serve as Secretary. However, because the
matters at issue here relate to special expertise and experience of only a small number of judges
on two specialized courts, the Conference has not at this time been engaged to deliberate on
them. In my capacity as Director of the Administrative Office of the United States Courts, I have
responsibility for facilitating the administration of the federal courts and, furthermore, the Chief
Justice of the United States has requested that I act as a liaison for the Judiciary on matters
concerning the Foreign Intelligence Surveillance Act (FISA). In considering such matters, I
benefit from having served as Presiding Judge of the Foreign Intelligence Surveillance
Court (FISC).

Enclosed is a document setting forth the Judiciary’s comments concerning certain
potential changes to FISA and proceedings before the FISC and the Foreign Intelligence
Surveillance Court of Review. In preparing this document, I have consulted with the current
Presiding Judges of the FISC and the Court of Review, as well as with other judges who serve or
have served on those courts. For the sake of convenience, throughout the enclosed document
(and in the summary below) I use the terms “we” and “our” to describe the Judiciary’s
institutional perspectives.

A TRADITION OF SERVICE TO THE FEDERAL JUDICIARY


workload would likely require the Court to hire its own staff and construct or acquire its own
secure space,

Effect of Certain Substantive Proposals on Court Operations

The following substantive proposals would impose significant new demands on the FISC
and ultimately the Court of Review.

Changes to National Security Letter Practices: The Federal Bureau of Investigation (FBI)
uses national security letters (NSLs), which are akin to administrative subpoenas, mainly to
obtain subscriber information, see Review Group Report at 90, although other types of records
may also be obtained, see, e.g., 15 U.S.C. § 1681u (consumer report records).

An NSL-related recommendation of the Review Group could increase the FISC’s annual
caseload severalfold. Under that recommendation, an NSL could be issued in non-emergency
circumstances “only upon a judicial finding” of “reasonable grounds to believe that the particular
information sought is relevant to an authorized investigation intended to protect against
international terrorism or clandestine intelligence activities.” Review Group Report at 89, 93
(internal quotations omitted). The Review Group did not reach a conclusion about whether to
give jurisdiction over NSL requests to the FISC or other federal courts. /d. at 93. The Review
Group recognized, however, that assigning such cases to the FISC “would pose a serious
logistical challenge. The FISC has only a small number of judges and the FBI currently issues an
average of nearly 60 NSLs per day.[?] Jt is not realistic to expect the FISC, as currently
constituted, to handle that burden.” Id. (emphasis added). We strongly agree. We are skeptical,
however, that the suggestions put forward to revamp the FISC to take on such demands — “a
significant expansion in the number of FISC judges” or “creation within the FISC of several
federal magistrate judges to handle NSL requests,” id. — would be adequate.

Moreover, even if one assumes that adequate resources can be made available to the FISC
to handle the sheer volume of new cases without compromising the district court work of FISC
judges, jurisdiction over 21,000 NSL requests per year would transform the FISC from an
institution that is primarily focused on a relatively small number of cases that involve the most
intrusive or expansive forms of intelligence collection to one primarily engaged in processing a
much larger number of more routine, subpoena-type cases. We fear that such a drastic shift of
emphasis would diminish the FISC’s effectiveness in adjudicating and overseeing cases
involving electronic surveillance, physical search or Section 702 acquisitions.

° In annual terms, the FBI issued 21,000 NSLs in Fiscal Year 2012. Review Group
Report at 90. By way of comparison, the FISC entertained 212 business records applications and
1,856 applications for electronic surveillance and/or physical search in calendar year 2012.
Letter of Peter J. Kadzik, Principal Deputy Assistant Attorney General, Office of Legislative
Affairs, U.S. Department of Justice, to the Honorable Harry Reid, Senate Majority Leader
(Apr. 30, 2013).


A mechanism that facilitates the involvement of an advocate in those particular cases that,
in the Court’s judgment, would benefit from an advocate’s participation would largely avoid
these difficulties. Contrary to the suggestion of the Review Group, see Review Group Report at
204, we believe that judges are fully capable of determining which matters would benefit from
such participation and how best to structure participation within a particular case.* If an
advocate’s participation is at the discretion of the Court, however, placing statutory limitations
on the types of cases in which that participation is available may prevent the Court from
benefitting from the advocate’s contributions in an appropriate case. For example, limiting an
advocate’s participation to cases presenting a novel or significant interpretation of the law could
prevent the Court from taking advantage of an advocate’s participation in a case that presented
challenging technological, rather than legal, issues. Such limitations might also raise
constitutional questions. See Congressional Research Service, Requiring a Federal Court to
Hear from an Amicus Curiae (Dec. 9, 2013) at 4.

Proposals that would empower a permanent advocate to independently seek
reconsideration of FISC decisions, or to appeal them to the Court of Review, would pose
difficulties in addition to those summarized above. As others have noted, substantial standing
and other constitutional issues would be presented if the advocate sought to challenge an
authorization granted by the FISC. See Congressional Research Service, Introducing a Public
Advocate into the Foreign Intelligence Surveillance Act's Courts: Select Legal Issues at 21-26
(Oct. 25, 2013).

Asa practical matter, a full-time advocate empowered to seek reconsideration in the FISC
and to appeal decisions to the Court of Review would significantly impact the operations of both
Courts. An increased number of reconsideration requests would pose scheduling and logistical
challenges in the FISC's current mode of operations. FISC judges frequently rule on cases toward
the end of their duty week, so in many cases it is highly unlikely that an advocate’s request for
reconsideration would even be filed before a sitting judge from a district outside of the District of
Columbia area returned to his or her district. As a result, judges would need to arrange their
regular district court schedules to allow for an additional, return trip to Washington in the event a
request for reconsideration were filed. If requests for reconsideration became sufficiently
common, the FISC would likely need to reexamine its current one-week rotation schedule. Either
approach would negatively affect judges’ ability to perform their district court duties.

In the Court of Review, any meaningful increase in the number of appeals would
transform the operations of that Court, which heretofore has not had a workload requiring full-
time operation. Because Court of Review judges also serve full-time on district courts or courts
of appeal, a significant increase in the number of FISA appeals might necessitate more judges
being appointed to the Court of Review. And because the Court of Review currently relies on
FISC staff and uses the FISC’s secure space to conduct its work, a significant increase in its

An approach in which the FISC could appoint an advocate in a particular case where
the advocate’s participation would be helpful would also enable the Court to select an advocate
who does not present recusal issues for the judge handling the case.

8


Judges appointed to the FISC retain all their regular responsibilities for civil and criminal
cases assigned to them in their respective districts. Each week, one of those judges is on duty for
the FISC in Washington, D.C. Eight of the eleven judges do not reside in the Washington, D.C.
area and must travel from their home districts in order to serve as the duty judge. The duty week
assignment rotates among the judges, so that each judge takes one week every few months away
from district court responsibilities to do FISC work. This rotation system avoids serious
disruption to the work of any one district when a judge serves on the FISC.

Because much of the material reviewed by the FISC is highly classified, its work
generally must be performed in a Sensitive Compartmented Information Facility (SCIF). FISC
quarters in Washington, D.C., including office space and a court room (which are also shared by
the Court of Review), are within such a SCIF. In contrast, a lack of secure communication and
storage facilities makes it very difficult for eight of the eleven judges to review FISC pleadings
or communicate about FISC matters when they are in their home districts. The large majority of
FISC cases are handled by the duty judge within one week while in Washington (though
preparatory work by Court staff often commences during the prior week). More complex or
time-consuming matters are sometimes handled by judges outside of the duty-week rotation, at
the discretion of the Presiding Judge.

FISC judges currently have substantial flexibility in deciding how best to receive from the
government information they consider relevant to a particular case. Formal hearings are
conducted when necessary. On the other hand, when deemed appropriate by a judge (for
example, in a time-sensitive matter), the FISC may request or receive information from the
applicant informally through its legal staff. This range of options enables the FISC duty judge to
routinely entertain 40 or more applications in a typical week. In keeping with the ex parte nature
of the proceedings, the government generally responds to these inquiries with a high degree of
candor; indeed, the government routinely discloses in an application information that is
detrimental to its case. This candor is also essential to the FISC’s ability to discharge its
responsibilities.

Introducing an advocate into a substantial number of FISC proceedings would likely
slow down and complicate the Court’s information-gathering and consideration of these fact-
intensive cases. Under current FISC rules and practice, in non-emergency cases the government
is required to submit proposed applications to the FISC within seven days of when it seeks to
have the final application ruled upon. In order for an independent advocate to have a meaningful
opportunity to review an application, decide whether he wishes to participate in its consideration,
and prepare and submit views to the FISC, and for the FISC to consider the advocate’s
submission together with the application, the government would have to submit a proposed
application substantially earlier than the present seven-day period. That requirement would
likely conflict with the government’s interest and the public’s interest to obtain expedited
consideration of an application or of successive applications when necessary to respond to a
rapidly evolving threat. Moreover, even relatively routine national security investigations often
involve changing facts, such that proposed applications would frequently require change or


Comments of the Judiciary on Proposals
Regarding the Foreign Intelligence Surveillance Act

January 10, 2014

These comments on behalf of the Judiciary regarding proposals with respect to the
Foreign Intelligence Surveillance Act of 1978 (FISA), codified as amended at 50 U.S.C.
§§ 1801-1885c, were prepared by the Honorable John D. Bates, Director of the Administrative
Office of the United States Courts, in consultation with the current Presiding Judges of the
Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court
of Review (Court of Review), as well as with other judges who serve or have served on those
courts.

It is the responsibility of the political branches to decide, within the bounds of the
Constitution, what legal requirements and processes or substantive limitations should apply to
intelligence gathering operations. For that reason, the focus of these comments is not to provide
policy advice on issues of national security, foreign relations or privacy. Rather, the principal
objective of these comments is to explain how certain proposals for substantive or procedural
changes to FISA would significantly affect the operations of the FISC and the Court of Review
(collectively, “the Courts”). These comments are presented in an effort to enhance the political
branches’ ability to assess whether, on balance, it would be wise to adopt those proposals. This
discussion also notes where we perceive that certain proposals may implicate serious
constitutional concerns, although detailed analysis of the constitutional issues is precluded where
those issues could foreseeably come before one of the Courts in the event that a proposal is
adopted.

The following is a summary of our key comments:

e It is imperative that any significant increase in workload for the Courts be
accompanied by a commensurate increase in resources.
e Some proposed changes would profoundly increase the Courts’ workload. Even if

additional financial, personnel, and physical resources were provided, any
substantial increase in workload could nonetheless prove disruptive to the Courts’
ability to perform their duties, including responsibilities under FISA and the
Constitution to ensure that the privacy interests of United States citizens and
others are adequately protected.

e The participation of a privacy advocate is unnecessary and could prove
counterproductive in the vast majority of FISA matters, which involve the
application of a probable cause or other factual standard to case-specific facts and
typically implicate the privacy interests of few persons other than the specific
target. 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, as the advocate would be unable to communicate
with the target or conduct an independent investigation. Advocate involvement in
run-of-the-mill FISA matters would substantially hamper the work of the Courts


Selection of FISA Judges

Currently, the Chief Justice selects eleven district court judges to serve on the FISC for
staggered terms not to exceed seven years. 50 U.S.C. § 1803(a)(1), (d). In order to ensure that
judges bring to the FISC experiences and practices developed around the country, these judges
must represent at least seven of the judicial circuits. § 1803(a)(1). At least three of the FISC
judges must reside within 20 miles of Washington, D.C., so that a judge will be continuously
available to entertain urgent matters. Id. The Chief Justice also selects three district court or
circuit court judges to serve on the Court of Review for terms not to exceed seven years.

§ 1803(b), (d).

Various proposals have been made to alter the selection or composition of judges on
these Courts,'* apparently reflecting a concern that their current membership is, or may be
perceived to be, politically or ideologically slanted.'* We urge those considering these proposals
to be mindful that a smoothly functioning selection process is necessary for the Courts to
discharge their responsibilities.

For the Courts to operate effectively, prolonged vacancies must be avoided. Maintaining
a full complement of judges will become even more imperative if other legislative changes result
in a heavier workload for the Courts. We are concerned that a selection process that involves
more persons — and especially one that is likely to introduce political factors — would result in
vacancies detrimental to Court operations and possibly to national security.

It has also happened from time to time that a judge being considered for service on one of
the Courts is not ultimately selected because of issues arising from the mandatory background
investigation.'® Knowledge of a problematic background investigation would be more
widespread if more persons were involved in the selection process. The prospect of potential

5, continued)
information about particular facilities.

4 The Review Group recommends dispersing the authority to select FISC judges, such
that “each member of the Supreme Court would have the authority to select one or two members
of the FISC from within the Circuit(s) over which she or he has jurisdiction.” Review Group
Report at 208. Various other proposals would involve the chief judges of the judicial circuits, the
President or Congressional leadership in the selection of FISC or Court of Review judges.

'S See, e.g., Review Group Report at 207-08 (noting that ten out of the eleven current
FISC judges were appointed to the district court bench by Republican presidents). The fact that
both current Court of Review judges were appointed to the federal appellate bench by a
Democratic president receives less attention.

'© This background investigation is required by the security measures adopted by the
Chief Justice in consultation with the Attorney General and the Director of National Intelligence,
pursuant to 50 U.S.C. § 1803(c).

12


however, believe that the following points should be kept in mind as these proposals are
assessed.

First, to the extent that the Courts may be assigned a new role in declassification and
release of information, that role should accord with the constitutional allocation of functions in
that sphere. Under the Constitution, classification of information in order to protect national
security has been considered an Executive Branch responsibility. See Dep’t of Navy v. Egan,

484 U.S. 518, 527 (1988). When necessary to resolve a case before it (e.g., under the Freedom of
Information Act, 5 U.S.C. § 552), a federal court may review classification decisions made by the
Executive Branch, typically under a deferential standard. See, e.g., Krikorian v. Dep’t of State,
984 F.2d 461, 464 (D.C. Cir. 1993).

Second, while we support the highest degree of transparency consistent with protection of
sensitive intelligence sources and methods and other properly classified information, we believe
that there are practical limitations as to what can be achieved. Significant FISC opinions
frequently involve the application of law to a complex set of facts, e.g., how to apply FISA’s
four-part definition of “electronic surveillance,” see 50 U.S.C. § 1801(f), to a proposed
surveillance method for a new communications technology. The government may often believe
it necessary to withhold from the public details about how a surveillance is conducted, so that
valid intelligence targets are not given a lesson in how to evade it. But a redacted opinion that
does not contain this factual information may merely recite statutory provisions or provide a
partial discussion of how those provisions were applied, without the factual context necessary to
understand the opinion’s reasoning and result. In such cases, partial releases of opinions run the
risk of distorting, rather than illuminating, the reasoning and result of Court opinions. That risk
is probably even greater for summaries of opinions that are offered as public substitutes for
withheld opinions, rather than as guides to opinions that are published.

We further suggest that, apart from the need to protect national security, legislative
proposals for release of Court opinions should take into consideration appropriate protections for
other categories of information, such as the names of government personnel or information
implicating substantial privacy interests. Finally, any procedural framework for public disclosure
should permit the Court a reasonable time to take any necessary action. Some proposals would
impose severe time constraints.

FISC Role in Monitoring and Enforcing Executive Branch Compliance

A common objective of proposed changes to FISA is to enhance monitoring and
oversight of intelligence gathering activities. Some particularly envision new roles for the FISC
in this regard.

All three branches of government have responsibilities regarding FISA implementation.
But it is important to recognize that the FISC does not have, and should not have, general
auditing and oversight functions comparable to those performed by an Inspector General or a
Congressional committee with jurisdiction over a particular Executive Branch agency. Judicial

14


Honorable Dianne Feinstein

Page 3

Drastically expanding the FISC’s caseload by assigning to it in excess of 20,000
administrative subpoena-type cases (i.e., NSLs) per year — even with a
corresponding injection of resources and personnel — would fundamentally
transform the nature of the FISC to the detriment of its current responsibilities.

It is important that the process for selection of FISC and Court of Review judges
remain both expeditious and fully confidential; the Chief Justice is uniquely
positioned to select qualified judges for those Courts.

In many cases, public disclosure of Court decisions is not likely to enhance the
public’s understanding of FISA implementation if the discussion of classified
information within those opinions is withheld. Releasing freestanding summaries
of Court opinions is likely to promote confusion and misunderstanding.

Care should be taken not to place the Courts in an “oversight” role that exceeds
their constitutional responsibility to decide cases and controversies.

Thank you for your previously expressed interest in the perspectives of the Judiciary on
these matters. Although these comments are not intended as expressions of support or opposition
to particular introduced bills, I hope they are helpful to Congress in its deliberations on potential
legislation. We have also provided these comments to the Administration. If we can be of
further assistance to you, please do not hesitate to contact me at 202-502-3000 or our Office of
Legislative Affairs at 202-502-1700.

Enclosure

Sincerely,

oper Gt

John D. Bates
Director

Identical letter sent to: Honorable Saxby Chambliss

Honorable Patrick J. Leahy
Honorable Charles E. Grassley
Honorable Bob Goodlatte

Honorable John Conyers, Jr.
Honorable Mike Rogers

Honorable C.A. Dutch Ruppersberger


Honorable Dianne Feinstein

Page 2

Our comments focus on the operational impact on the Courts from certain proposed
changes, but we do not express views on the policy choices that the political branches are
considering. We are hopeful, of course, that any changes will both enhance our national security
and provide appropriate respect and protection for privacy and civil-liberties interests. Achieving
that goal undoubtedly will require great attention to the details of any adjustments that are
undertaken. For example, it may not be important whether an outside participant in certain
matters before the Courts is labeled an amicus curiae or public advocate; what matters is the
specific structure and role of such a participant.

The following is a summary of our key comments:

It is imperative that any significant increase in workload for the Courts be
accompanied by a commensurate increase in resources.

Some proposed changes would profoundly increase the Courts’ workload. Even if
additional financial, personnel, and physical resources were provided, any
substantial increase in workload could nonetheless prove disruptive to the Courts’
ability to perform their duties, including responsibilities under FISA and the
Constitution to ensure that the privacy interests of United States citizens and
others are adequately protected.

The participation of a privacy advocate is unnecessary—and could prove
counterproductive—in the vast majority of FISA matters, which involve the
application of a probable cause or other factual standard to case-specific facts and
typically implicate the privacy interests of few persons other than the specified
target. 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, as the advocate would be unable to communicate
with the target or conduct an independent investigation. Advocate involvement in
run-of-the-mill FISA matters would substantially hamper the work of the Courts
without providing any countervailing benefit in terms of privacy protection or
otherwise; indeed, such pervasive participation could actually undermine the
Courts’ ability to receive complete and accurate information on the matters before
them.

In those matters in which an outside voice could be helpful, it is critical that the
participation of an advocate be structured in a manner that maximizes assistance
to the Courts and minimizes disruption to their work. An advocate appointed at
the discretion of the Courts is likely to be helpful, whereas a standing advocate
with independent authority to intervene at will could actually be
counterproductive.


Others have proposed changes to NSL requirements that would also have substantial,
albeit less direct, effects on the FISC’s caseload. For example, requiring an NSL to disclose to
the receiving party the factual predicate for issuing the NSL would implicate investigative
information that the FBI presumably would have good operational security reasons not to
disclose in national security cases, regardless of how well-supported the NSL may be.'° These
changes would likely result in the government’s decreasing its reliance on NSLs for records
subject to such a disclosure requirement and instead bringing to the FISC more applications
under Section 501 for production of such records, in order to avoid disclosure of such
information to private parties.

Section 501 — Bulk Call Detail Records: Some proposals call for elimination of bulk
production to the government of call detail records under Section 501. See, e.g., Review Group
Report at 86-89, 115-19. If the bulk production of such records were eliminated, we anticipate
that the government would bring to the FISC many more particularized applications for
productions of such records or, as envisioned by the Review Group, for authorization to query
bulk metadata retained in private hands. /d. at 115, 118-119. Others have considered preserving
the government’s ability to obtain bulk production of call detail records, provided that the FISC
would review the substantive basis for querying that information (either before or after the fact).
Any of these variations would impose significant new burdens on the FISC.

Nondisclosure Provisions of FISC Orders: It is not apparent that recipients of FISC
orders are generally interested in publicly disclosing those orders. For example, a recipient of an
order to produce records under Section 501 may challenge a related nondisclosure order after one
year from the date the latter order was issued. See § 501(f)(2)(A)(i), codified at 50 U.S.C.

§ 1861(£)(2)(A)(). From 2005 through 2012, the FISC granted approximately 750 applications
under Section 501. To date, no recipient of a Section 501 order has ever challenged its
non-disclosure obligations pursuant to Section 501(f)(2)(A)(i).""

Nevertheless, some have proposed substantial changes in this area. For example, the
Review Group recommends that nondisclosure obligations should be placed on recipients of
NSLs, Section 501 orders, pen register and trap-and-trace orders, Section 702 directives, and
“similar orders directing individuals, businesses, or other institutions to turn over information to
the government . . . only upon a judicial finding” — presumably by the FISC in matters within its
purview — “that there are reasonable grounds to believe that disclosure would significantly
threaten the national security” or another specified type of harm. Review Group Report at

'© We note that the President’s Review Group recognizes that the factual predication for
NSLs is likely to involve classified information. See Review Group Report at 93.

"Tn cases now pending before the FISC, several providers are seeking a declaratory
judgment that they may lawfully release certain aggregate statistical information about various
types of orders they have received, including Section 501 orders. Those cases, however, were
not brought under Section 501(f)(2)(A)(i).

10


embarrassment ~ potentially for an individual who would continue to serve publicly for the
remainder of her career as a sitting federal judge — might deter qualified judges from wanting to
serve on the Courts.

With specific regard to FISC operations, it is also important to maintain the practice of
having multiple judges based in Washington, D.C., or its immediate vicinity. In its current form,
FISA explicitly relies on a pool of local judges to handle particular kinds of time-sensitive cases.
50 U.S.C. § 1803(e)(1). This approach is sensible, given the severe security-related limitations
on the ability of non-local judges to work on FISC matters in their home districts. For the same
reason, there is a further need for local judges to handle other types of emergency situations, as
well as complex matters that require a judge’s engagement for longer than a single week in the
ordinary duty rotation. See, e.g., Section 702(i)(1)(B) & (3)(C) (thirty-day period for FISC to
review certifications and procedures for acquisitions targeting non-U.S. persons outside the
United States and to provide a written statement of the reasons for its decision). Proposals that
would make it more difficult to ensure that multiple FISC judges are based in the Washington
area would negatively affect FISC operations.

Finally, proposals to disperse the selection authority among the associate justices of the
Supreme Court or chief judges of the federal circuits ignore the Chief Justice’s unique role in the
Judicial Branch. The Chief Justice is the President of the Judicial Conference of the United
States, which includes the responsibility to assign federal judges across the country to the various
Conference committees and other tasks, including service on special courts such as the Judicial
Panel on Multidistrict Litigation.'’ The Chief Justice is therefore uniquely positioned, with the
assistance of the Director of the Administrative Office of the United States Courts, to review the
federal judiciary and select qualified judges for additional work on the FISC or the Court of
Review."*

Public Disclosure and Declassification of Court Opinions
and Other FISA-Related Information

The Judicial Branch is committed to making court opinions available to the public unless
there is a compelling need for secrecy. The FISC regularly makes publicly available those of its
opinions that do not contain classified information.

A number of legislative proposals are aimed at making more information available to the
public about FISA legal interpretations and other aspects of FISA implementation. Cases
involving declassification and release of such information are pending before the Courts, so we
are especially constrained from addressing the substantive merits of these proposals. We do,

'” The associate justices have no role in this process.

'§ Although the selection of judges for the FISC and the Court of Review is often labelled
as an “appointment,” it is more accurately considered to be a designation to serve on the Court.

13