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US judges say FISA court privacy advocate may be counterproductive

Foreign Intelligence Surveillance Court judges have said the creation of a privacy advocate in the secret court could be counterproductive and hamper its work.

The FISC court was set up under the Foreign Intelligence Surveillance Act (FISA), which requires the government to obtain a judicial warrant for certain kinds of intelligence gathering operations.

The creation of the position of a privacy advocate, to represent privacy and civil liberty issues in the court, was first suggested in August by U.S. President Barack Obama in the wake of demands for reforms of the surveillance programs of the National Security Agency. The agency came under scrutiny after disclosures through newspaper reports by former NSA contractor, Edward Snowden, of its dragnet surveillance, including the bulk collection of phone records of Americans.

A panel appointed by Obama, called the Review Group on Intelligence and Communications Technology, has also recommended a number of changes in the way NSA programs are conducted, including taking the collected phone records out of the hands of the agency and requiring individual court orders for most searches of the records database.

Obama is expected to announce new guidelines on Friday, according to reports.

”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,” John D. Bates, a former presiding judge of the FISC, wrote in a letter to Senator Dianne Feinstein, chairman of the Senate select committee on intelligence, which was released Tuesday.

The involvement of the privacy advocate in routine FISA matters would hamper the work of the courts, including its ability to receive complete and accurate information from intelligence agencies, without providing benefits such as privacy protection, according to the letter.

In matters in which an outside voice could be useful, the judges favor an advocate appointed by the court rather than an advocate “with independent authority to intervene at will.”

The judges are also in favor that the 11 district court judges appointed to serve on the FISC continue to be appointed by the U.S. Chief Justice. They also warn against release of court opinions, stating that the government may often want to redact the opinion to conceal from the public details about how a surveillance is conducted, as it could provide tips for evasion to intelligence targets. Redacted opinions may not have the “factual context” required to understand the reasoning and results of court opinions, the judges said.

Bates said he was writing the letter and accompanying document, summing up the views of former and current FISC judges, in his capacity as director of the Administrative Office of the United States Courts. He said he also acts as a liaison for the judiciary on FISA matters, at the request of the U.S. Chief Justice.

He said the comments by the judiciary focus on the operational impact on the courts arising from the proposed changes, but do not comment on policy choices the political branches of government are considering.

Some of the proposed changes would, however, increase the courts’ workload, which even if additional resources are provided, would prove disruptive to the courts’ ability to perform their duties, including responsibilities under FISA and the U.S. Constitution to ensure that the privacy interests of U.S citizens and others are protected, Bates wrote.

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