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Steptoe Cyberblog

Judges as Bureaucrats

Posted in Privacy Regulation, Security Programs & Policies

I’d like to offer readers a short quiz on judicial independence.

Imagine a field where liability is common but damages vary widely — patent law, perhaps, or disability claims. In this field, there is a specialized court that has attracted Congressional and press criticism because it rules for the plaintiff 99% of the time. Stung by relentless criticism based on this statistic, the chief judge of the court finally writes a public letter to Congress, saying, in essence,

“You don’t understand how this court works. The court conducts detailed pretrial settlement negotiations and in at least 25% of its cases, the judge tells the plaintiff that he is likely to lose unless he reduces his claim to an amount the court considers more reasonable, and the plaintiff almost always does. The court on occasion tells the plaintiff that his chances are so poor that the case should be dropped, and it usually is. In order to correct the misimpression created by the 99% success rate figure, from now on this court will keep track of every case in which we force the plaintiff to reduce or abandon his claim and will publish those statistics regularly.”

Based on those facts, I offer two multiple-choice questions:

1. The court’s letter is (choose one):

a. A breach of the tradition that courts do not enter the political arena to justify their decisions.

b. A prudent and factual response to public misunderstandings about the court’s decisions and role.

2. Which statement about the court’s collection of statistics is most accurate?

a. It improperly encourages the court’s judges to “improve” their track record by negotiating for reductions and withdrawals of plaintiffs’ claims even when those reductions and withdrawals are not required by law.

b. It is a valuable public service countering an inaccurate public impression; no reasonable person could believe that the publication of such statistics would ever influence the court’s execution of its judicial responsibilities.

If you were even tempted to choose “a” as the answer to either question, you should be troubled by these two letters, written by Chief Judge Walton of the FISA court. They say, in essence that the government’s 99% success rate before the FISA court fails to take into account the frequent and intense negotiations between the court and the government, negotiations that result in modification or withdrawal of roughly a quarter of all FISA applications. The most recent letter promises that in the future the court will keep track of all the modifications or withdrawals of FISA orders that the court negotiates and will report the court’s track record to Congress and the public.

In my view, nothing better illustrates the error behind the popular bien-pensant meme that the FISA court is just a rubber stamp. The reverse is true, and for obvious reasons. Saying no makes the court a civil liberties hero; saying yes makes it a civil liberties goat. Which do you think the judges want to be? You don’t have to dig deep into these letters to guess the answer.

The current political and press climate inevitably strains the FISA judges’ impartiality and encourages the court to demand concessions from the government that have no basis in law. A similar climate before 9/11 might explain Chief Judge Lamberth’s legally unjustified and fateful imposition of “the wall” in the months before the attacks, echoes of which may be found in Judge Walton’s over-the-top attack on the government in the section 215 telephone metadata case.

But even those who don’t share that view must surely wonder what role the FISA court and its staff are playing when they negotiate changes in a quarter of the warrants brought before them. Why are permanent staffers, apparently accountable only to a shifting array of judges, holding meetings up to three times a week and maintaining daily phone contact with the government to pursue questions that originate in at least some instances with the staff and not the judges? Why does the FISA court receive draft (essentially negotiation) copies of planned government pleadings before they have been reviewed and approved by executive officials?

To anyone who has served in government, these are familiar tactics. Any good executive branch bureaucrat seeking to expand his turf insists that his staff have early access to other agencies’ plans and reserves the right to negotiate those plans before they’re final. By the same token, any good executive branch bureaucrat works hard to influence how the press and Congress views his agency. All this elbowing and delegating and schmoozing and corresponding, though, has a distinctly unjudicial air.

In fact, the more the FISA court seeks to justify itself to Congress and the press, the less like a court it sounds.