DOJ and ODNI Support the Senate Version of the USA FREEDOM Act

The headline won’t surprise those who have been following the surveillance reform debate. But on August 19, Senate Judiciary Committee Chairman Leahy sent a letter to Attorney General Holder and Director of National Intelligence Clapper, asking, in short, whether the Senate version of the USA FREEDOM Act “adequately reflects the input and operational needs of the Intelligence Community and law enforcement agencies.” Yesterday, the Attorney General and DNI sent their response. The full text is available here, but in a nutshell, it concludes that “the Intelligence Community believes that [the Senate] bill preserves essential Intelligence Community capabilities; and the Department of Justice and the Office of the Director of National Intelligence support your bill and believe that it is a reasonable compromise that enhances privacy and civil liberties and increases transparency.” The letter also stresses the AG and DNI’s view that “the appointment of an amicus in selected cases, as appropriate, need not interfere with important aspects of the FISA process, including the process of ex parte consultation between the Court and the government.”

I leave it to others whether the AG’s and DNI’s approval is actually a reason to dislike the Senate bill; for present purposes, what strikes me as significant about the letter is its (1) verification of what was already widely suspected–that the Obama Administration supports the Senate bill (which, after all, reflects a number of compromises hammered out with the relevant Executive Branch stakeholders); and (2) confirmation that the objections to the Senate bill that have been voiced by Judge Bates (who has himself now been chastened by one of his judicial brethren) are not well-taken on the merits, since even the Intelligence Community isn’t worried about the “special advocate” procedures unduly interfering with either the government’s ability to exercise its valid surveillance authorities or its relationship with the FISA Court. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).