Two weeks ago, I wrote about Judge Bates’s latest letter to the Chairman and Ranking Members of the Senate Judiciary and Intelligence Committees, objecting to various aspects of the Senate version of the USA FREEDOM Act–the surveillance reform proposal that, among other things, would create more adversarial process within the FISA Court itself. As I wrote back then, in addition to the substantive flaws in Judge Bates’s letter, it was unclear how his letter could truly be “on behalf of the Judiciary,” especially given the views of two of his former colleagues on the FISA Court–both of whom supported reform proposals even more aggressive than those provided by the Senate bill..
Courtesy of Politico’s “Morning Tech,” it now appears that Judge Bates has provoked a prominent voice among his brethren to respond. In a letter sent to the same Senators (and cc’d to Judge Bates and Attorney General Holder), Ninth Circuit Chief Judge Alex Kozinski (who, by dint of being Chief Judge, serves on the Judicial Conference of the United States–the body that usually speaks on behalf of the federal courts on policy matters) explains that he has “serious doubts about the views expressed by Judge Bates,” and “[i]nsofar as Judge Bates’s August 5th letter may be understood as reflecting my views, I advise the Committee that this is not so.”
To be sure, Chief Judge Kozinski does not affirmatively endorse the Senate bill (or any other reform proposal); he just points out, as I argued two weeks ago, that whatever the merits of Judge Bates’s concerns, they can only fairly be attributed to him.