- Associated Press - Tuesday, January 14, 2014

WASHINGTON (AP) - The U.S. judiciary told Congress on Tuesday it opposes the idea of having an independent privacy advocate on the secret Foreign Intelligence Surveillance Court, while members of Congress lauded the idea at a Capitol Hill hearing.

Speaking for the entire U.S. judiciary, U.S. District Judge John D. Bates sent a letter to the Senate Intelligence Committee saying that appointing an independent advocate to the secret surveillance court is unnecessary and possibly counterproductive, and he slammed other key reforms as adding too heavy a caseload to the secret court’s work. In FISA court hearings, judges only hear from the government seeking a spy warrant.

Bates said opening the proceeding to an advocate for privacy in general - who would never meet the suspect or be able to defend the charges against him - wouldn’t create the kind of back and forth seen in open criminal or civil court proceedings.

“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,” he wrote.

In another revelation about NSA activities, The New York Times reported Tuesday night that the agency has implanted software in nearly 100,000 computers around the world - but not in the United States - that allows the U.S. to conduct surveillance on those machines.

The NSA calls the effort an “active defense” and has used the technology to monitor units of the Chinese Army, the Russian military, drug cartels, trade institutions inside the European Union, and sometime U.S. partners against terrorism like Saudi Arabia, India and Pakistan, the Times reported.

A presidential task force has recommended adding an independent advocate to the FISA court. Members of the task force defended the proposal before the Senate Judiciary Committee, as did Chairman Patrick Leahy, D-Vt., during a hearing Tuesday on the NSA’s surveillance programs.

Cass Sunstein, a member of the Review Group on Intelligence and Communications Technologies, said the secret court should not be making decisions on law or policy without an opposition voice.

“We don’t think that’s consistent with our legal traditions,” Sunstein said. He also said that a public advocate would only be needed for a small number of cases because most FISA proceedings do not involve “issues of law or policy.”

Those competing points of view are playing out as President Barack Obama decides what changes he’ll back and unveil in a speech Friday to satisfy privacy, legal and civil liberties concerns over the NSA’s surveillance practices.

Bates, the former FISA chief judge, also rejected the panel’s recommendation that the government seek court approval every time it wants to obtain information in cases of national security, known as a national security letter. Roughly 20,000 such letters are issued every year. Bates said it would create too much work for the court, even if staff were added to handle the caseload.

Bates was speaking for the judiciary in his current role as the administrative judge of the United States courts. In his letter, Bates said a public advocate would not be able to provide an independent factual investigation because of the court’s “operational security reasons.” But he did not detail any constitutional impediments.

Rep. Adam Schiff, an advocate for FISA reform, said Tuesday that reformers aren’t pushing for an independent advocate in all cases. “It would only be for the request to bless broad programs or for novel constitutional issues,” the California Democrat said in an interview Tuesday.

Schiff, a senior member of the House intelligence committee, added that requiring the court to sign off on National Security Letters would create more work, but that’s no excuse to skip the reforms.

Task force members also defended their proposal to shift the government’s massive inventory of Americans’ phone records from the NSA to telephone companies. When Sen. Charles Grassley, R-Iowa, raised concerns about whether phone companies could safely hold phone metadata, Geoffrey Stone, a University of Chicago law professor, acknowledged that could be a concern.

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