Privacy Board Hears from Surveillance Defenders, Critics

Several prominent lawyers are playing key roles in the public debate about government surveillance programs, including two former U.S. Department of Justice attorneys who defended the secret monitoring effort today.

The newly revived Privacy and Civil Liberties Oversight Board today held its first public panel discussion, exploring the clash between privacy and surveillance amid news reports about National Security Agency programs targeting the collection of phone call data from millions of Americans.

Steven Bradbury of Dechert and Kenneth Wainstein of Cadwalader, Wickersham & Taft, a former U.S. attorney for the District of Columbia, tangled with civil liberties advocates on the panel.

Bradbury, who worked in the DOJ Office of Legal Counsel during the George W. Bush administration, and Wainstein argued the secret court in Washington that oversees the NSA programs has given appropriate oversight to the government's ability to collect Americans' communication records.

The heart of their basic message: Trust the federal judges assigned to the Foreign Intelligence Surveillance Court. "We trust judges," said Wainstein, co-chair of Cadwalader's business fraud group.

"I can tell you from experience that judges on the FISA court… contrary to what some people suggested, [are] not at all in the government's pocket," Wainstein said. "They put us through our paces to make sure that what we give them measures up to their standards and the standards in the law."

Bradbury, who practices in antitrust and securities litigation at Dechert, told the Privacy and Civil Liberties Oversight Board that 14 different judges had approved the NSA programs since 2006, and the programs are “entirely lawful.”

A former federal trial judge who served on the FISA court eight years ago, James Robertson, said during the panel that the court "was not a rubber stamp" for the NSA.

But the secret court is "problematic" because it is one-sided, said Robertson, who has since retired from service on U.S. District Court for the District of Columbia. Following legislative changes in 2008, Robertson said, the court is now approving surveillance programs, not just surveillance on one individual.

"That change in my view, turned the FISA court into something like an administrative agency, which makes and approves rules for others to follow," Robertson said. "That's not the bailiwick of judges. Judges don't make policy."

This process needs an advisory, Robertson said, to challenge and take the other side of anything presented to the FISA court. (Several proposals to inject an adversarial review into the FISA court process are cropping up, including one here from George Washington University Law School professor Orin Kerr, who has written extensively about electronic surveillance.)

Several companies, including Google Inc. and Microsoft Corp., are fighting in the FISA court to gain the ability to tell Americans more details about the government requests made for subscriber data. Perkins Coie's Albert Gidari represents Google, and a team from Covington & Burling, including James Garland, represents Microsoft.

Yesterday, Floyd Abrams of Cahill Gordon & Reindel filed an brief on behalf of civil liberties and privacy advocates in support of requests from Google and Microsoft to provide greater data about the scope of government demands for user information. "Even basic facts of central relevance in this debate are unknown and currently unknowable to the public, facts ranging from how extensive the government surveillance programs are to how many users or accounts they affect," Abrams wrote in the court filing.

The Privacy and Civil Liberties Oversight Board, an independent agency within the White House, had been dormant since 2007. The board is seeking to air the issues around the programs that were only revealed when NSA contractor Edward Snowden leaked them to the media.

The board's chairman, David Medine, is a former Wilmer Cutler Pickering Hale and Dorr partner. Other members of the board include Elisebeth Collins Cook, a counsel to Wilmer; Rachel Brand, chief counsel for regulatory litigation for the U.S. Chamber of Commerce's National Chamber Litigation Center; and retired Judge Patricia Wald, who served on the U.S. Court of Appeals for the D.C. Circuit from 1979 to 1999.

Board member James Dempsey, at the end of the hearing, encouraged Bradbury and Wainstein to stay engaged in the ongoing debate about the NSA programs and continue to defend them. But their role shouldn’t be "that the program is perfect," Dempsey said.

Comments

[Avon]

Bravo for the initiatives to inject a challenge mechanism into FISA decisions!

I personally don't think it's policymaking to approve what amounts to blanket secret subpoenas as opposed to individual ones. I just think it's an outrage. I personally don't distrust the federal judges, though I wish they weren't all Republican appointees and I wish they didn't just parse language details of subpoena / demand-letter approvals.

Rather, I think we need to make the FISA court a place for advocacy. Without a "case or controversy," its very right to exist is in doubt. And without adversarial participation, American liberty is in doubt.

My list of complaints about the "PATRIOT" Act, FISA, and intelligence self-policing is long. But the Kerr-type reform would go a long way toward assuaging them.