John D. Bates Interview 5

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Oral History of Honorable John Bates
Fifth Interview
January 13, 2022
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is John Cooney, and the interviewee
is Honorable John Bates. The interview took place on Thursday, January 13, 2022. This is the
fifth interview.
MR. COONEY: Thank you very much, John, for being here. In my suggestions for how
we should approach the interview, I suggested that it might be appropriate
at this point for you to discuss what your judicial philosophy has become
as a judge and the principles you have followed in handling your cases.
Does that strike you as a good place to begin?
JUDGE BATES: Sure. Let me again say thank you, John, for doing this and for your
availability. It is shocking to me that this is already the fifth session.
We’re sure moving along, but we haven’t gotten to decisions yet.
MR. COONEY: I think that will happen today.
JUDGE BATES: Yes. So you want me to talk a little bit about judicial philosophy or
principles that have helped to guide my approach to judging, and even as
they’ve evolved over time, the twenty years. And indeed, I celebrated my
twentieth year last month. I didn’t do much celebrating because with
COVID nobody knew about it.
This is going to be a short one because I’m not much on assigning
labels to my judicial philosophy, if there is one, and to my approach to
judging. I mean there are principles. There are guideposts that I certainly
pay attention to, but I’m not sure they boil down to a judicial philosophy.
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There are some obvious tenets that have helped to guide me, and they are
really obvious. I would say one of the principal ones is work hard at it.
It’s not an easy job. It’s a fairly big responsibility to decide matters that
come before a judge, whether they be criminal matters that involve
potentially someone’s freedom or civil matters having great consequence
to the litigants involved or to the government and to the country, in some
cases, particularly in this jurisdiction, with the kinds of cases we get.
I follow the rule of law. That’s a principle that I have believed in
throughout my adulthood and certainly as a judge. I think the rule of law
is an important legal guidepost for judges and is certainly of great
importance to me. I do also try to be fair, open-minded. I pride myself on
being a pretty responsible listener as a judge to all sides that are being
presented, whether in writing or orally, and that I not only listen to them,
but I consider them. I think that’s an important thing for a judge to do.
Sometimes it’s just a matter of appearance. You have to make sure that an
argument that you don’t agree with is being considered and that the party
presenting it has a sense that you’re fairly and fully considering it. But
most of the time, it’s important because there may be a glimmer of truth to
both sides. There may be a convincing argument that you hadn’t thought
of as you prepared, and you really do need to listen and take into account
exactly what is being presented to you.
As a judge, I hope I’m not afraid to make decisions. I think it’s
important for judges to make decisions. I’ve always prided myself on
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keeping the docket moving, and so there’s a timeliness aspect to making
decisions, but there’s also a completeness aspect. You need to be prepared
to decide what needs to be decided, but I would stress what needs to be
decided because while you should not be afraid of making decisions, I do
not think that a judge should decide more than the judge needs to. There
are legal principles that apply to that, but just put simply, my philosophy
would be not to reach out to decide things that are not necessary to the
matter being resolved that is before me.
I try to respect everyone in the process, and that’s important not
only with regard to the lawyers who are presenting arguments, but also
with respect to witnesses, jurors, your staff, everyone involved. Again,
it’s an important process resolving and dispensing criminal and civil
justice, and there are a lot of people involved in it, not just the judge. You
need to be respectful of everyone involved and appreciate their roles. I’ve
always felt it was important for me to explain what I’m doing, what I’m
deciding, and why I’m deciding it. That’s probably why I historically
have written a lot, certainly in my first fifteen years on the bench, issued a
lot of written opinions, some of them quite lengthy. Part of that was
because of my abiding belief that I owed it to the litigants, sometimes to
the public, sometimes to the bar to explain my decisions and how I had
reached the result that I ultimately reached. On the other hand, while I’ve
written a lot, I think it’s also important to get to the heart of the matter, not
to spend a lot of time that is wasted.
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I always admired one judge who I appeared before as a lawyer, and
that was Gerhard Gesell. I thought of all the judges that I have known and
appeared before, he had the best ability to get to the heart of the matter, to
see what really was important, and to focus on it. I think that that’s
something that I’ve always tried to keep in mind, sometimes with success,
sometimes probably not with success.
I guess I demand a fair amount of the other players in this process,
particularly the lawyers and their clients. I demand courtesy and good
faith, but I also ask for quality work. I want them to present the arguments
fully, fairly, conscientiously, and as I said, I will listen to them. Now I
expect even more probably of the government, and this has been true in
some contexts in particular. It’s true in the criminal cases where the
government has a large responsibility. It was definitely true in spades
when I was on the Foreign Intelligence Surveillance Court because the
only party before you is the government, and so the expectation is even
higher because of that reliance, but it’s also been true in certain contexts
over the years. I think back to the height of the Guantanamo cases being
litigated in this court and the expectations that I, along with other judges,
had of the government, that the government was playing fair, shooting
straight, and being fully forthcoming, and I’ve asked that of the
government in many other settings as well. I try to bring no presumptions
or pre-judging or biases to my decisions. I think all judges should work
very hard to do that. It’s an imperfect world. You cannot expect the
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judges haven’t lived a life and that that life hasn’t formed them in some
way, including their thinking, and including their thinking on issues that
may be before them and certainly on judicial philosophy, for example, and
the approach to judging. But I try very hard to be a fair, neutral arbiter
and not bring any biases or preconceptions to the job. And I guess I would
end along these lines. I would say that it is important I think to have
compassion and sympathy, particularly in some settings. You need to be
careful because sometimes that can lead you in a direction other than what
the law requires, but I would not exclude empathy from the job of judging.
I think that that enters into the exercise on occasion in certain contexts.
But looking at these doctrines and labels, I don’t think helps that much
with respect to what I’ve done over the past twenty years. I mean I could
say things like I’m not an originalist. I’m not. But exactly what am I?
I’m not so sure that’s easy to quantify or qualify. I do start with the
relevant text for one of the principal jobs in this district that we have,
which is interpreting statutes and regulations because there’s a lot of
administrative law and a lot of statutory interpretation that comes with the
job. I do start with the relevant text and sometimes end there. And I’m
hesitant to rule inconsistent with a fair reading of that text. And as a
District Court judge, as opposed to an Appellate or Supreme Court Justice,
my job is to follow the law, and I do try to follow the law, and I think that
that requires some faith to the Supreme Court’s decisions and the D.C.
Circuit’s decisions, and I think that’s an important part of the job of a
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district judge, to read and interpret them fairly but to follow the law as
created by higher courts. John, I’ll stop talking for now.
MR. COONEY: Over this week, I’ve reread seven of the opinions you sent me to read so I
could become familiar with your approach, and I must admit that you do
an extraordinary piece of work in following the law. I don’t know if I’ve
ever seen a judge who could so clearly, carefully mark out what the Court
of Appeals or the Supreme Court has established as the law, and the effort
you made to follow those and to explain each of them and how you were
responding to it, to the people who were involved in the litigation. So that
was really a tour de force in a series of opinions.
JUDGE BATES: Well my condolences and apologies for ruining your weekend. I’m sorry
that you had to spend your weekend doing that.
MR. COONEY: It was a great pleasure. When you started discussing Judge Gesell, you
anticipated one of my questions for you, which is how do you identify the
factors that you think are going to be dispositive for you in the case, the
things that you’re going to think are at the heart of the matter, and how did
you organize those in your own brain?
JUDGE BATES: Well, understand that the judge is at least the third step in that process
because you have the lawyers presenting the arguments through briefs and
orally as well on occasion, and so they’re doing, one hopes, a good job
and a significant job of identifying the issues, what’s important, what
needs to be addressed. And then in my chambers, I have my law clerks as
well, and they’re undertaking an analysis of the case based on the
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submissions, but also based on independent research. So they’re helping
to focus the issues. And then I do the same thing by relying on what the
lawyers have done and what my law clerks may have done. My
experience, which I think helps me, as it does any judge who’s been
around a little while, in seeing what is important, what really will resolve
the case, what needs to be addressed, what doesn’t need to be addressed,
and I would say applying that experience, along with the excellent labor of
others, usually can focus pretty well on what matters. Now not always.
I’d say there are occasions that I write more or cover more issues than is
really necessary. Sometimes there’s a reason for that, but I think that
applying experience and understanding of the law, but also the job of
judging and relying on the hard work of the lawyers and the law clerks,
usually we can get it pretty well focused.
MR. COONEY: A slight variant on that question, how do you approach writing the
opinions once you and your law clerks have had a full discussion of the
issues?
JUDGE BATES: It varies, John, to be quite honest. There are different categories of cases,
and I don’t mean by subject matter, but I mean the type of case, the
complexity of the case. There are a lot of routine cases, and those routine
cases, the law clerk and I may have had very minimal conversations about,
and the law clerk will be drafting an opinion. It may be pretty short. It
could be as much as fifteen pages maybe, but that will be done not totally
independently, but with really minimal input from me other than a couple
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of emails or conversations. Then there’s the mine run of cases which are a
little more complex, a little more significant, demand a little bit more, and
I will have read the papers and maybe read some of the cases during
conversations with the law clerk, and we’ll focus the opinion and what we
think needs to be covered and how I’m going to resolve the issues during
those communications. And then in the opinion writing, the draft will be
done by the law clerk. I’ll review it. I’ll send it back. It may go through
only two drafts. It may go through four or five or six drafts, depending on
lots of things, the complexity of the issues, the quality of the first draft, a
whole litany of things could impact it.
And then there’s a category of cases that I would say are fewer, but
every year there’s a few, and those are the more complex, significant
public cases of greater importance for one reason or another, and on those,
it’ll be frequent contact back and forth with the law clerk. In those cases,
and in some of the mine run of cases, there’ll be a bench memo done
before an oral argument is held, and that’s certainly a way that we really
focus even before the opinion is begun in terms of the drafting phase. But
with this category of the most complex cases, we may be dealing with part
of the case at any given time and talking about it and then with another
part of the case or one issue versus another issue. There’ll be lots of
communications as we start to develop what the overall resolution is and
how an opinion would be crafted. That would usually have some initial
writings done by the law clerk to me in the form of a bench memo or an
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assessment of some issue based on some research or an outline of an
opinion. Those kinds of tools help us in our craft as we try to come up
with a persuasive, well-put-together opinion.
MR. COONEY: Well thank you. I’m tempted to jump into the fray and ask what cases you
found to be your most difficult cases in the course of your twenty years on
the bench, but I think that would ruin the case for the readers of this. I
think it’s appropriate to take people to that conclusion through
chronological discussion of the cases that you had.
JUDGE BATES: I tend to agree with you, and certainly maybe later on in our 17th session
we can revisit that and maybe touch on some of the cases that we’ve
already discussed. It didn’t take long for me to have a pretty varied docket
that was sprinkled with interesting and even significant cases. As we’ve
already discussed, when I came on, as did every judge at that time, I had
about 300 civil cases and then the criminal docket as well, and that, for the
most part, those cases came from other judges on the court through a
random process not by selecting dogs and transferring dogs, but the
process, roughly the same process, was still used. That system just takes
some of the newer cases from the existing judges and makes up a docket
for a newly arriving judge.
There were lots of new experiences for me to face. On the
criminal side, my first plea, my first sentencing, ultimately my first trial. I
think we discussed that a little bit already. And then on the civil side,
getting engaged with a pretty wide-ranging docket, much of which I had
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some experience with, but not all, and to have motions hearings, which I
love, that interface, and interplay with lawyers presenting on behalf of
their clients has always been one of my favorite parts of the job. The trial
calendar was busy when I first came on the bench. I would say for the
first you know five or six years, I would have six or seven criminal trials
during the course of a year and one or two civil trials over the first few
years. Even for the active judges, the trial calendar has not been as busy
lately. Certainly for the last almost three years now because of COVID it
hasn’t been that busy. But even before then, the trials had slowed down in
this court. But back when I first came on the bench, I was trying half
dozen criminal cases and a couple of civil cases on average every year. I
did get some important cases that are fairly unique to the D.C. District
Court or Circuit Court docket.
MR. COONEY: The first cases that I saw from your earliest days in the court were very
interesting. There were two decisions in relatively short order that
discussed standing issues. One of them was standing by the head of the
Government Accounting Office, and the other was a case involving 32
members of Congress of the House who applied to the court for relief, and
those issues about standing for people within the government continue to
play an important role in this. It’s very interesting to see how early in
your stay you receive those opinions and had to establish ground rules,
which I still see in cases that I read that investigate the same issues.
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JUDGE BATES: There’s no doubt that the jurisdictional issues, that threshold group of
doctrines for justiciability, standing, mootness, et cetera, are very
important in this District with government cases but throughout the federal
judiciary, and certainly standing is the paramount one of those issues. I
did have a couple of cases, as you said, early on that were interesting
exercises in applying standing principles. I would say those two cases,
along with one other case were the three most significant cases that I had
in that first year-and-a-half on the bench.
The other case was a statutory interpretation in the FTC arena, and
that was one of those cases where I had some really significant lawyers
appearing before me. In that case, one side was represented by the former
Deputy Attorney General, to be the Attorney General later on, Eric
Holder, and who was someone that I knew quite well and had worked with
at the U.S. Attorney’s Office, and the other side was represented by Don
Verilli, later to be the Solicitor General of the United States. I came down
on one side on that case, and in retrospect, I would say I did a poor job in
that case. Sometimes when you get reversed by the Court of Appeals,
which I did in that case, you think well no, I’m right. They’re wrong, and
that’s a fair assessment. And it may be that there’s a dissent from the
Court of Appeals, so actually the judicial lineup is two to two, or the case
may go to the Supreme Court. But in that case, on reflection after reading
the D.C. Circuit opinion, I think the D.C. Circuit got it right, and I got it
wrong. So I think I did a bad job, and I learned from that. It was one of
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those statutory interpretation cases in a murky area, difficult, complex, and
I think I just didn’t hold up my end of the bargain in terms of the work on
the case, and the law clerk and I didn’t together do the job we should have
done. That’s going to happen, and it’s a learning experience for a judge.
Every judge gets reversed by the Court of Appeals. Every District
Judge. There’s no judge who can say I never got reversed unless they
only were a judge for six months. It’s just the way things happen, and that
case is one where not only was I reversed, but I think the D.C. Circuit got
it right, and I learned from that experience.
Now in the other cases, you mentioned the Walker versus Cheney
case dealing with Walker, who was the Comptroller General, so the head
of GAO, and that case too was another one of those early cases where I
had really significant, excellent lawyers handling the case. The two sides
were represented in that case by Carter Phillips on the one hand
representing the Comptroller General. Carter Phillips at that time was
probably the dean of the Supreme Court bar, and Paul Clement on the
other side, who has since gone on to be probably among the most wellknown
Supreme Court litigators. He was the Deputy Solicitor General.
He and the Solicitor General worked on that case. It was the first of many
cases that I’ve had over the years dealing with the relationship of the
branches of government and separation of powers and specifically in the
standing context as you noted, John. And here it was the standing of the
Comptroller General to seek an order requiring the Vice President and a
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group that the President had formed, and the Vice President was in charge
of to produce information related to energy policy. The GAO, of course,
is an arm of Congress, so there was that conflict between the branches
with an arm of Congress seeking information from the Executive Branch.
I don’t know if you want to ask questions about it or want me to say a
little bit about it first.
MR. COONEY: I remember that that case was based in some point on an earlier Supreme
Court decision in Raines v. Byrd.
JUDGE BATES: It was, but even more, it was based on the Raines decision from the
Supreme Court. The standing issue was really focused on Raines, which
is a congressional members of Congress standing issue, important for the
next case we’re going to talk about, but it also was very important for this
case, and that was probably the principal Supreme Court decision dealing
with standing that I applied. It was important I thought to appreciate, or I
think looking back at it, to appreciate the nuances of standing or any other
important doctrine as applied to the unique circumstances that may be
before the court, and here it was the fairly unique circumstance of an arm
of Congress seeking information from the Executive Branch. That body
of standing law is a pretty limited body of standing law, and Raines is the
leading case. It’s certainly true that decision, as you’ve already alluded to,
John, certainly is an early example of my view of how important it is to
carefully craft an opinion and particularly opinions on certain subjects. I
knew this was important to both sides. I knew, obviously, that it was
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getting some publicity. It was in the papers. And back then, it was the
papers. It wasn’t as much the electronic media as it is now.
So it was important to take the time to work hard, go through the
issues with care, to craft an opinion that I thought would stand the test of
time. And certainly that was a major task for me and the clerks as we
worked on that case, and is, from year to year, a major task on the cases
that produce significant opinions as the law clerks and I work together to
craft those opinions.
But the issues in the Walker v. Cheney case were interesting, and
although pretty narrow, they were important in terms of standing law. I
really enjoyed working on the case and working through the case to the
issuance of an opinion. It was not appealed, so as important as it was and
as much effort was put into it by the two sides and by me, the result was
that the parties accepted, if you will, the decision that I reached and an
appeal was not taken. My decision was, of course, that there was no
standing for the Comptroller General to seek the relief that was being
sought. There are separation of powers principles that lie behind that
because of the two branches of government being at odds.
MR. COONEY: That seems to be one of the lessons in Kucinich v. Bush. The members of
Congress still don’t seem to understand completely that in order for a
member of Congress to sue, they have to have a personal injury in order to
have standing, and institutional trauma, institutional damage does not
count.
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JUDGE BATES: In case anyone ever listens to or reads this oral history, I will let your
comment stand without myself saying that Congress never learns, but
certainly, you’re right. It’s another case in the same mold, and as you
said, it was brought by 32 members of the House of Representatives, and
again, major authority, although there were two prongs to this, the major
authority was Raines on the standing question, and indeed the case was
pretty close to the Raines situation before the Supreme Court. Here you
had 32 congressmen challenging President Bush’s unilateral withdrawal
from the anti-ballistic missile treaty without seeking any congressional
approval. So once again, with these members of Congress suing the
President, there was a separation of powers and justiciability issue at the
fore. These congressmen were simply unhappy with the result, and
indeed, there had been votes that they had been on the losing side of, and
that was of some passing importance in the assessment of the case.
I’ll tell you a little vignette. The oral argument in this case, I
commenced the oral argument, and about a few minutes into it, into the
courtroom walked Congressman Kucinich making a dramatic entry and
walking down the middle of the aisle in the courtroom to counsel table on
his side, and it was just clear to me that he almost intentionally had waited
until a moment that he thought he could make the most impact in terms of
his entry into the courtroom. That always struck me as a little bit amusing.
Sometimes significant parties think that the significance that is true for
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them makes a difference to me, and I have to say that I don’t think it does.
Hopefully it doesn’t, and I hope that that doesn’t disappoint anyone.
But relying on Raines, I concluded that there was no standing.
There was no injury here that was personal to these congressmen. It was
just an institutional injury, and that is not enough in this standing
assessment, and it was only those institutional interests that were really
impacted. It was not anything of a personal injury to the congressmen.
They had political remedies, and the political remedies are not perfect, but
there are political remedies when a President is doing something that
Congress doesn’t like. You can deal with appropriations. You can deal
with holding up nominations. You can do all sorts of things. You see that
today occurring, as it does at all points in the relationship, particularly of a
congress or senators that are not of the same party as the President or
congressmen that are not the same party.
So there are those political remedies available, and there was no
authority here given by the House itself or a committee of the House to
file this suit. The suit was just filed by this collection of 32 members of
Congress, and that was not enough to survive under the standing law.
I also decided the case on a second basis as well. I would call it a
secondary basis, and that was another justiciability question, the political
question doctrine, and I decided following another Supreme Court case,
the Goldwater versus Carter case, another treaty case, I decided that
following the reasoning of the plurality in that case since there wasn’t
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really a majority decision, that this was a political question that the court
should not get involved in. And often there are multiple jurisdictional or
justiciability routes to deciding the case, and the court has to determine
which one or ones to employ and address. In this instance because that
Goldwater versus Carter case was so close in terms of what was
happening, I thought that it was worthwhile to go further than just address
standing and to also address the political question aspect of it. And in
other cases, I’ve decided not to do that and only to focus on one issue in
resolving it and not deal with other routes to the same result, and that’s
really just an assessment of the particular case and how important I think it
is to address multiple issues. And sometimes, and this is a little bit of
judicial philosophy, sometimes I will decide that a second issue should be
addressed because the first issue is a close one and the case is likely to be
appealed, and I want the Court of Appeals to have the benefit of my
assessment of the other issue in case they disagree with me on the first
issue. They would then not be writing on a clean slate and have the
benefit of what my decision was on the second issue if they needed to
reach it. But that’s sort of a case-by-case assessment of how much to
address in an opinion, and I did do that in this case and decided in the
particular case that it was worth addressing both of these issues.
MR. COONEY: Thank you. I think that’s a very good explanation of the case. To stay in
chronological order here, I wonder if I could depart from discussion of
cases briefly and then come back to that because we’re starting to get to an
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extraordinary series of separation of powers cases that you’ve had over the
course of your twenty years and the next big cases will also be separation
of powers cases. But my understanding is that you were appointed by
Chief Justice Rehnquist to serve on U.S. Judicial Conference Committee
on Court Administration and Case Management. I wonder if you could
provide a description of what you did in that capacity and how you were
appointed and what your responsibilities were.
JUDGE BATES: The first thing I’ll say is that the Judicial Conference Committee on Court
Administration and Case Management has the worst acronym in
Washington. It’s CACM, and I knew nothing about that committee, really
the work of that committee, when the Chief Justice appointed me.
Appointments to judicial conference committees are done by the Chief
Justice a little differently with Chief Justice Rehnquist than with Chief
Justice Roberts, but basically the same. They receive recommendations to
fill vacancies on the 26, I believe it is, judicial conference committees that
exist that deal with all variety of subjects for the federal judiciary. There
are the rules committees, there’s a budget committee, judicial security,
criminal law, bankruptcy, all down the line, and one of them is this Court
Administration and Case Management Committee that deals with issues
for the most part on the civil side but criminally as well. It deals with how
cases are administered and managed and what things need to be decided.
It is sort of a catch-all committee in that if something doesn’t neatly fit
under the jurisdiction of one of the other committees, it almost always
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goes to CACM. So CACM has a pretty broad area of responsibility
touching on things that you wouldn’t even imagine. Some of them are
interesting, some of them are not, but it’s a very active committee, and I
was happy to receive the appointment, although, as I said, I didn’t really
seek it, and I wasn’t really familiar with the committee. But it was my
introduction to the administration and management of the federal
judiciary, and the importance of their work is clear. They resolve a lot of
very important issues. Cameras in the courtroom is something that comes
before them, questions dealing with case management issues, caseloads
and equalizing caseloads, whether new judges need to be appointed, lots
of different issues. The work of the committee is both important, and, as I
said, sometimes interesting, but sometimes boring.
I’ll tell you one vignette. I had a meeting, I think it was in Santa
Fe, New Mexico, and back in those days, a lot of the Judicial Conference
Committees met in interesting places, and that was another attractive
aspect of being on a Judicial Conference Committee. That’s no longer the
case. First of all, we don’t have that many in-person meetings right now
because over the last two-plus years we’ve been dealing with the
COVID—19 pandemic, but even before that, and part of this was put in
place during my regime as the Director of the Administrative Office of
U.S. Courts, we cut back on the freedom of committees to have meetings
wherever they wanted, particularly if it took two or three flights and a full
days’ worth of travel to get to the place of the meeting. I remember some
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great meetings at places that really took a long time to get to and were
quite expensive to get to, so we tried to focus on what I’ll call hub cities
where the air travel was much easier to connect with the city. But in any
event, we had a meeting in Santa Fe, and my wife went with me to the
meeting because we took a couple of days after the meeting to do a little
vacation in New Mexico, and she had family in New Mexico. She was
having trouble sleeping that first night that we were there before the
meeting the next day, and so she picked up the agenda materials, which
are usually a very fat binder with hundreds of pages of material in it and
read it as she was trying to go to sleep in the middle of the night, and she
said it was great. It put her right to sleep. That committee deals with
some issues that just don’t seem that interesting to outsiders because they
are very administratively detailed, and for those on the committee,
sometimes you see the same issues year after year after year because they
are really intractable and difficult to resolve and come up in different
forms at different times.
One of the best things about committee work from my long
experience with it is the relationships and exposure. You get exposed to
judges from around the country from different courts, different kinds of
courts, quite frankly, and from different experiences in their lives, not just
the little bubble where you are with judges from your court, and I think
that’s always a really really nice aspect to committee work. You form
some good relationships. I formed some relationships with judges on that
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committee with me that last to this day, with the chair of that committee,
with Sonia Sotomayor, who was on that committee with me when she was
a Second Circuit judge, and she and I have stayed in shouting distance
close since then and had some great dinners together. Those relationships
I think are important as a judge. It gives you a perspective and a breadth
of experience that I think is a nice thing to have as you see different courts
and different judges on those courts working on similar problems or get a
glimpse for how they judge and the kinds of cases they face.
So I did that for six or seven years. Usually Judicial Conference
appointments are for three years, and then they can be renewed for a
second three years, and then sometimes the Chief Justice will extend you
for a year. I don’t think I actually was extended for a year because by the
time the six years ran, I was engaged in other things that we’ll wind up
talking about in a little while. But that was the CACM Committee
appointment and the introduction to Judicial Conference Committees and
specifically to the administration of the federal judiciary.
MR. COONEY: Thank you. I’ll return now to the discussion of the cases, and the next
case that I read over this week is a fascinating case, your opinion and
eloquent discussion of the constitutional writ of habeas corpus. The case
is Omar Abu Ali versus Ashcroft. The writ of habeas corpus typically is
invoked by U.S. citizens who have been incarcerated but don’t think that
they’ve had appropriate process or other defects in the way that the
Executive Branch handled the case, and they ask a court to issue the writ
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so they can be discharged from their confinement. As you explained
beautifully in the opinion, the habeas corpus case here presented a
separation of powers issue, as all habeas corpus cases do, which involves
the respective powers of the Executive Branch, which did the
incarceration, and the Judicial Branch, which is the only power in U.S.
government that has the ability to release somebody, finding that they
have been incarcerated not in keeping with the law. What’s unusual about
this case is that the writ of habeas corpus was brought by four aliens who
had been incarcerated for the government’s finding that they were foreign
terrorists and they had sought a writ of habeas corpus for their discharge,
which raised new cutting-edge questions that had to be resolved.
JUDGE BATES: I’m going to deviate a little bit from our strict chronological development
because I want to make sure that we get a sense for what was really taking
up the time of judges on my court, including myself.
The Ali versus Ashcroft case is neither a case dealing with a
Guantanamo detainee, nor a case brought under the Foreign Sovereign
Immunities Act. Instead, it was a case brought, and as you said, it took a
lot of trees to discuss habeas corpus, but it was a case brought by an
individual who had been detained in Saudi Arabia.
I want to digress for a minute and say that from about late 2002
onward, for a good number of years, this court and I were absorbed very
much in the habeas corpus world through the Guantanamo cases, the cases
brought by Guantanamo detainees, to seek their freedom, having been held
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for one year or having been held for many years. I still have Guantanamo
cases. There aren’t that many anymore. I think the number of people at
Guantanamo is down under 40 now, but it was much higher in the early
2000s. These were a huge demand on our court, and it lasted for many
years. I say late 2002. That was not the height of it. A few years after
that was really the height of it. But they evolved over years as cases, went
up to the Supreme Court and to the D.C. Circuit, and the District Court
was dealing with statutory changes as well as those decisions from the
Supreme Court and the D.C. Circuit that changed the law that we were
applying. But there were dozens of habeas corpus actions by Guantanamo
detainees. The judges of our court, including myself, took this
responsibility very seriously and worked very hard on those cases which
were, an overused word, but they were unique. These cases were not like
anything else in the federal judiciary or that we had ever seen before. I
issued many decisions on Guantanamo cases, both preliminary decisions
and final decisions, as the court was coming up with the legal rules but
also the procedural rules for how to deal with these Guantanamo cases and
the effort by the detainees to get their freedom once the Supreme Court
had opened the door at least, to that effort continuing in the federal
judiciary. The Supreme Court left it to our court to devise the rules and
the process to be applied to these cases, and we spent a lot of time and
effort dealing with those cases. I want to especially commend retired
Judge Joyce Hens Green, who took on a significant centralized set of
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issues, and then Senior Judge Tom Hogan, who also later took on a similar
type of responsibility. They greatly aided the court and all the judges of
the court in dealing with these cases. There was just an inordinate amount
of time and attention devoted to this unique aspect of the docket in the
District Court for the District of Columbia. It’s especially true with the
Guantanamo cases, but it’s also true with these Foreign Sovereign
Immunities Act cases. Those cases, which deal with the terrorist world for
the most part in our court but also some other issues, have been very very
important. I don’t think we’ll wind up discussing much in the way of
those cases, but I do want to stress that I issued many many opinions
dealing with those terrorists’ actions against the United States, the
bombing of the United States embassies in Lebanon back in 1983 and
1984, the bombing of the embassies in East Africa in 1998. I’ve issued
hundreds of pages of decisions dealing with those cases and entered
awards of billions of dollars against, for the most part, Iran for its support
of terrorism, Hezbollah, and occasionally others. Sudan for its sheltering
of Osama bin Laden and al Qaeda during a period of time before and
leading to the bombings in East Africa. And those cases have been a
major part of my work on the District Court, and I don’t want us to lose
sight of how important they’ve been, both to me and to the development of
law in those areas, and to some extent, public policy because the
Guantanamo issues and the Foreign Sovereign Immunities Act issues with
the actions against terrorists have been an important aspect of the United
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States’s efforts and activities. I still have lots of cases that deal with those
issues. I have quite a few Foreign Sovereign Immunities Act cases,
although it’s changed. Now I’m dealing with cases currently on my
docket, and I’m currently writing a big decision on, that deal with the
responsibility of those who supported the activities in Afghanistan and
Iraq that led to the use of improvised explosive devices, IEDs, and similar
weaponry against the United States military presence and killed and
maimed scores of U.S. soldiers. I have cases dealing with those issues
now that are brought against, for the most part, Iran.
One aside on those kinds of cases, with respect to the East African
embassy bombings – it’s public, but it hasn’t been totally completed –
ultimately Sudan, which did not participate for a while, did come back on
appeal to try to challenge my decisions without success, the Court of
Appeals issued one big opinion on that, and ultimately to try to regain
entry into the international community, Sudan has agreed to settle for its
role in supporting terrorism, material support of the terrorist activities of
the East African bombings, I think to the tune of between $400 and $500
million, so they are significant cases. But the legal aspects of the War on
Terror and the terrorist attacks on the United States and U.S. citizens have
played out in this court, in many instances before me, and the same is true
of the Guantanamo detainees.
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But back to the case that you mentioned, and I’m sorry for that
long diversion, but I think it’s worthwhile because that was such an
important part of the work of this court over a lengthy period of time.
So back to the Ali versus Ashcroft case, which, as I said, was
neither a Guantanamo case nor a Foreign Sovereign Immunities Act case,
but it’s an important application of habeas corpus, and it taught me a lot. I
would not say that I’m known for challenging or rejecting the
government’s position in terrorist cases, but I have done so on occasion. I
would say that I am known for testing and probing of the government’s
position because often in those cases, it’s only the government that is
appearing. That’s not true in the Guantanamo cases, but it is true in many
of the Foreign Sovereign Immunities Act cases because Iran does not
appear. But at least preliminarily in the Ali versus Ashcroft case, I did
reject the government’s position. There was a preliminary decision. I
went through at great length the history, evolution, and development of
habeas corpus and the meaning of it. You have to understand that
sometimes those things are propelled by the work that you do in tandem
with your law clerk, and I had a law clerk at that time who was really
engaged in the subject and was tremendously talented and productive. He
had clerked on the Second Circuit for a very distinguished judge on the
Second Circuit, and interestingly, again a little vignette, I’ll say that I
always had a warm spot in my heart for him because after he had
committed to clerk for me, he got an invitation to interview with a
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Supreme Court Justice, and he turned it down because he felt that it would
not be the right thing to do since he had committed to clerk for me. I
always thought that was an honorable, perhaps stupid, but honorable
position. Anyway, that case, he deserves credit for really pushing along
and propelling the scope and depth of that decision. It was a U.S. citizen,
a young man who was studying in Saudi Arabia, and he was seized by the
Saudis, allegedly at the direction of the United States. He was held
without charges. After some months, a habeas corpus petition was filed
on his behalf, and the government moved to dismiss it, and that was the
context of the case before me. I concluded that because he was a United
States citizen, he had not forfeited his fundamental constitutional right to
be free from indefinite detention by the U.S. government without due
process. The key was that in the context of the motion to dismiss filed by
the government, I accepted the allegations, the well-supported allegations,
by the petitioner, that the United States was directing his confinement, that
it was a confinement by Saudi authorities at the direction of the United
States. The government did not really deny that, but they didn’t admit it
either. They did not factually contest it, so the facts before me were solely
the facts that were sufficient to support the preliminary conclusion that his
detention was at the direction of the United States, and because of that, I
denied the motion to dismiss saying that habeas corpus was available to
this U.S. citizen who was being detained in this circumstance as
established, if you will, by the allegations which had to be assumed true
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for purposes of the motion to dismiss that the government filed. So what I
did was not grant habeas relief to the petitioner by releasing him, but I
ordered that jurisdictional discovery would take place to determine what
the facts were, was it true that he was being held at the direction of the
United States. And the FBI had been involved. They had been in Saudi
Arabia, so there were some people to depose and then some activity to
look at, and I ordered jurisdictional discovery to explore those facts. I’m
confident that that was the right thing to do even though the government
had resisted it very very strongly in this situation where behind the curtain
they were saying this is a significant terrorist that we need to be detaining.
So what happened? I ordered jurisdictional discovery, and the
jurisdictional discovery started. It hadn’t really begun in full, but it had
started. At that point, Ali was released from Saudi Arabian detention, and
he was returned to the United States. He was indicted, a federal
indictment in the Eastern District of Virginia, on charges of providing
material support to al Qaeda, conspiracy to assassinate the President, and
to commit, I think there was aircraft piracy involved as well in what the
plot was. He was charged and tried and convicted in the Eastern District
of Virginia, and on that basis, I subsequently decided the case was moot
before me, the habeas position was moot because he wasn’t being held any
longer in the circumstances that gave rise to the habeas petition. Instead,
he was being held in a criminal case here in the United States, so I
dismissed the case as moot. I don’t know what would have happened if I
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hadn’t granted jurisdictional discovery and denied the motion to dismiss,
but I to this day am confident that that was the right thing to do even
though the government was resisting it quite strongly.
MR. COONEY: Alright. If that’s the completion of your discussion of the case, I’ll move
on.
JUDGE BATES: Unless you have some questions you’d like to explore, I think that’s what I
wanted to say or recall about it.
MR. COONEY: That’s a very good description of the issues in the case and how it ends up.
So the next question for you is that now we’re going to start going back to
another appointment you had an appointment by Chief Justice Roberts to
serve on the Foreign Intelligence Act Court.
JUDGE BATES: Foreign Intelligence Surveillance Act Court. We call it the FISC for short.
MR. COONEY: I wonder if it makes sense to start the discussion of the Act because there
are several steps in that, and it may make sense to take advantage of your
time while we have you to have you start with the basic description of
your appointment to the Court and then what the Court does.
JUDGE BATES: Yes. Let’s do that. I think that makes a lot of sense. I’ll just close out on
the Guantanamo cases by saying that, as I said, I spent a lot of time on
them. I issued a lot of decisions. Generally I would say my decisions
were accepted by other judges at the Court and by the D.C. Circuit for the
most part. There’s an exception, and we’ll talk about one exception to that
where the D.C. Circuit did not see the case in the same way that I saw it,
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but those cases did take a lot of my time. So I was appointed to the
Foreign Intelligence Surveillance Court.
MR. COONEY: Excuse me for interrupting here. I see that I jumped over. I wondered if
that was what you were thinking about, that the Ali case has another short
opinion in Ali versus Gonzalez, which deals with the resolution of the
case.
JUDGE BATES: I think I’ve already discussed that. In terms of the FISC appointment,
that’s something that again, appointments to that court, as well as to
Judicial Conference Committees, are made by the Chief Justice, and the
Chief Justice takes it very seriously, and now it’s Chief Justice Roberts.
In conversations with me, I think I can share this, he has said that he
considers that to be a truly national court because it does have judges from
all over the country on the court, and it’s a court that he can have a large
role in crafting and making sure that experienced, dedicated judges are on
the court. When I was appointed, I think I knew that from work I had
been doing and from judges who knew me there was a good chance that I
would be appointed. Three of the judges on that eleven-judge court have
to be from the D.C. area. They don’t have to be on the D.C. District
Court. They could live close by, Eastern District Virginia or even
Greenbelt, from Baltimore, but they have to be from this geographical
area. And usually it’s three judges from this court. Not always, and
indeed, today there are not three judges from this court on the Foreign
Intelligence Surveillance Court. So the appointments to that court are
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skewed so that there are more judges from our court that get on it than
from the rest of the country, but the requirement is these days and when I
was appointed that seven of the circuits have to be represented on that
court. So there is a statutory requirement that ensures a geographical
disbursement around the country. The court deals with the Foreign
Intelligence Surveillance Act, and that is the statute that came about from
a number of sources. I would say the Church Committee activities back in
the 1970s exposing some problems with our intelligence and domestic
intelligence efforts and the passage of the Foreign Intelligence
Surveillance Act and some Supreme Court decisions dealing with issues of
domestic terrorism all gave rise to the statue, and then as part of the
statute, the creation of the court to deal with the government’s applications
to conduct surveillance in certain settings, foreign intelligence settings.
It’s changed a little bit over the years in terms of the statutory basis. There
have been modifications to the Act, but essentially what the court does is
deal with applications that the government brings to conduct surveillance
related to foreign intelligence or terrorism, things of that sort. There used
to be, I would say maybe as many as 2,500 or so applications a year. I
think that was the height of things post-September 11, 2001, and it’s not as
high now. There are fewer applications. There are a lot of reasons for
that. It was a very busy court when I was there. Basically what happens,
you’ve got eleven judges, and a judge sits for a week, and it rotates, which
means that each judge has about five weeks a year that they are sitting as
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the judge on the Foreign Intelligence Surveillance Court. Now there are
other obligations. Sometimes there are cases that extend beyond that.
Sometimes there are other responsibilities, but the primary responsibility
is that sitting that occurs every eleven weeks or so, so about five times a
year. The work has to be done here in Washington in a secure facility, a
SCIF, if you will, and we have the court here in the courthouse in
Washington. One floor of the old courthouse building is where the FISC
is located, and it’s all secure. You can’t get into it. The only way you get
into it is through kind of hand and eye recognition that you see in the
movies. It’s the only way that you can get through the doors. The judge
sits and does the work there, doesn’t take any work home with him at
night because it’s all classified. You deal with these applications for
surveillance, and of course when you have applications for surveillance,
the other side can’t know that the surveillance is being requested and then
conducted if it’s approved because if they knew, then that would defeat
the purpose of the surveillance. So for the most part, historically these
have been applications with only one side, the government, appearing
before the court. More recently, there’s been more of a move to have
some amicus participation and a little more expansion but essentially and
fundamentally, it’s not an adversarial process but a one-side process where
the application is brought before the court. There may be some routine
matters. There may be some very significant matters. Some of the
matters that you have seen in headlines over the last fifteen years of my
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experience with the court would be matters that at one point or another
were the subject of applications before the Foreign Intelligence
Surveillance Court. We dealt with a lot of the fallout from the program
initiated by President Bush, second President Bush, called the President’s
program, that really was an end-run around the Foreign Intelligence
Surveillance Act and led to the confrontation in a hospital room where an
effort was made to get Attorney General John Ashcroft, who was very ill,
to agree to something that was resisted, that led to a major retraction and
change of what was being done. We dealt with over the years many
significant surveillance requests and some very routine surveillance
requests. Don’t get me wrong. Among those 2,500 a year, there are some
that are very routine and don’t require much thought, quite frankly. But
for the most part, the judges and the staff of the Foreign Intelligence
Surveillance Court, which consists of very experienced lawyers who work
on these applications along with the judge, they take these and deal with
them very seriously and have to take on the responsibility of probing what
the government is saying because there is no other side to do so. I had
many hearings, and not all matters require a hearing, but I had many
hearings where I really was probing the factual or legal representations
and presentations by the government.
Historically, and I’m sort of stepping out of my experience to just
talk generally now, historically there always had been a view that the
Foreign Intelligence Surveillance Court was a rubber stamp for the
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government. I think that’s less the view these days than it used to be.
Statistics have now been revealed that would support factually that about
25% of the applications are not accepted in full when brought by the
government. It may be that surveillance on three phones is sought and
only two are approved, or it may be that there are two legal theories
presented and one is rejected, and one is approved. But there’s substantial
modification, including some outright rejections or declinations of the
applications in about 25% of applications. That doesn’t include little
typographical changes but significant changes to the authorities, the scope
of the surveillance or something else significant.
So the court really is doing some hard work on some very
significant matters. Sometimes you have packages that are many inches
thick of historical materials. Sometimes you have an application that is
only a couple of pages, and there’s a good reason for that. But in any
event, the process is a very exacting process, and the judges are very
diligent doing that. I’m not saying that it’s perfect. I’m not saying that
there aren’t things to always be thinking about in terms of legislative
improvements or this tension between security and privacy because it
exists. There’s fundamental tension there, but the matters, the types of
cases, are interesting and demanding for the judges. It used to be very
high-volume.
I developed some expertise in this area and even wound up
teaching national security law focused on the Foreign Intelligence
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Surveillance Act at Georgetown for five or six years and at the University
of Arizona for an equivalent length of time. I have stopped that now and
haven’t taught for the last two years because of COVID. I did teach
remotely for one year but didn’t find it to be as personally rewarding, and
I was very busy on other things, so I haven’t taught for the last two years.
I don’t know if I’ll go back to teaching. We had lots of interesting matters
on the FISC. Twice a year there are conferences of the Court to discuss
issues that are of interest to all the judges, and there’s a lunch that is held
at the Supreme Court with the Chief Justice and with all the leading
members of the, I’ll call it the intelligence community, the heads of the
significant agencies, the CIA, the DIA, the NSA, the Attorney General on
down the line, the Director of National Intelligence, et cetera. They all
attend this luncheon, and it’s a great opportunity in a little less formal
setting to have some time together when for the most part you’re
reviewing as a judge the applications made. I remember dealing with
some very significant issues, some of which have become public as more
and more has been released dealing with the work of the Court. It’s pretty
interesting work.
I think what the best thing to do now, John, is maybe to stop
because as I told you I have a rescheduled court matter in a few minutes,
and when we pick up again, I can talk a little bit about the Foreign
Intelligence Surveillance Court when I became Chief Judge of the Court,
the presiding judge of the court, because there are some interesting aspects
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to that as well before we go back to talking about the rest of my work, the
casework. When you’re appointed to the Foreign Intelligence
Surveillance Court, it doesn’t substitute for any of your other work. It’s
an additional responsibility that judges have willingly and often eagerly
taken on. Now the Chief Justice doesn’t like to see people be too eager to
take on the positions because that raises a little bit of suspicion about
whether someone will be fair and thorough in their examination of the
issues, but certainly judges have been very willing and occasionally
anxious to take on the responsibility as a judge of this court, and it is an
additional responsibility beyond their normal duties.
MR. COONEY: You picked an excellent place to come to a halt in today’s interview. The
future readers and future people listening to this tape will all be wondering
what’s coming after the break when we start on the sixth interview.
JUDGE BATES: We’re building the suspense, when actually it’s just the time that has
dictated that I stop because I have a plea hearing in a couple minutes.
MR. COONEY: So this is a good place to stop.