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Oral History of Honorable John Bates
Sixth Interview
February 11, 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 Friday, February 11, 2022. This is the
sixth interview.
MR. COONEY: As we discussed at the end of the last interview, we talked about the first
part of your time on the Foreign Intelligence Surveillance Court, and I
thought we’d start, if it’s okay with you, with discussing what the
experience was like when you were promoted to being the presiding judge
of that court, and then when we’ve had that discussion, at that point we
could transition to the major cases that you’ve had. This would be for the
years 2008 to 2012 where you had a bevy of important cases.
JUDGE BATES: I did have quite a few meaningful cases. You also had suggested that you
might want to ask me a question or two about judicial philosophy or
principles, and I welcome those as well. But let’s start with the FISC. As
you said, I did ultimately become the presiding judge. I’ll call it chief
judge, which is what it was and is, even though the statutory term is
presiding judge. Those responsibilities are comparable to the
responsibilities that a chief judge of a district court has. They’re a little bit
different, and it certainly is a smaller scale than being chief judge of our
court because you don’t have many of the administrative duties to deal
with and the space, staff, et cetera, it’s a much smaller universe.
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MR. COONEY: I need to interrupt you for one second to get this on the record. Thank
you, John. If you can keep going now, I’d appreciate it.
JUDGE BATES: The interruption is welcome and thank you for that introduction, and no
thanks for the reminder that this is the sixth interview, but they’ve all been
enjoyable, and I’m sure this one will be as well, and we’ll reach the end of
the road someday.
In the meantime, speaking of the Foreign Intelligence Surveillance
Court and the role of the presiding, or chief, judge, I sort of had been told
that this appointment would be forthcoming. Nothing for sure, and the
Chief Justice makes the appointment and can decide to do whatever he
decides to do at the moment. But it had been indicated that this would be
coming after a couple of years. There’s a limited pool of people to choose
from because the chief judge is almost always a judge from my court.
There have been exceptions, one exception I can think of, with a judge
from Maryland, but it has to be a judge close by because some of the
duties today, and when I was chief judge, the duties do require a presence
frequently in the courthouse with the court.
In any event, there are some other things that happen with being a
chief judge of that court. You do take on responsibility for some of the
longer-term assignments, some of the bigger cases, and occasionally, some
of the matters needing more immediate attention. There are some
provisions in the statute that actually direct things to the local judges, and
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for that reason, often to the chief judge because of the urgency of those
matters for the most part.
There are some other administrative responsibilities. There are
generally two conferences of the entire court each year. The chief judge
helps to put those together with the staff of the court.
As I think I have mentioned earlier, there are some wonderful
attorneys who work for the court, maybe 4 or 5 or 6, depending on the
time, and they are very experienced, knowledgeable people. There’s a
clerk of the court and some other staff who work for the court, all of
whom are of immense help to the court, but in particular to the chief
judge.
The chief judge has some additional interaction-type
responsibilities with the Department of Justice and with others as
necessary. This may vary from chief judge to chief judge and from time
to time depending upon the matters that are extant and needing attention
and needing some coordination with the Department of Justice or other
agencies. I had a lot of interface with the Department of Justice on several
matters when I was Chief Judge and occasionally with other agencies,
particularly the National Security Agency, not as much the CIA or the
Department of Defense.
There was also a possibility, it varies from year to year, but the
possibility of some interface and interaction with Congress. It’s not
unusual for Congress to be seeking information from the court or from the
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judges of the court, although that happens more at particular times in the
history of the country when particular events occur. I certainly faced
some of that and had some requests from Congress to come and testify or
to meet with them. I remember one such request from the chair of the
Senate Select Committee on Intelligence. She was very anxious to have
me come and talk to them about a footnote, which has since become
public. It wasn’t public at that time, but it has since become public, in a
decision where I ruled against the government on statutory interpretation
and on Fourth Amendment grounds, and a footnote indicated that this was
not the first problem we had had with government compliance. She
wanted to explore that, but I declined, as I did on all occasions where we
received such requests when I was Chief Judge. We did not go and appear
before Congress. I will get to another matter in that arena in a moment.
The Chief Judge is a resource for the other judges. Some of the
judges have much less experience with the issues. Some of the judges
don’t have as many matters or haven’t been on the court for as long, so
they have less experience, and they are seeking assistance and guidance,
often from the Chief Judge. A I said, many big decisions wind up with the
Chief Judge, and that certainly was true when I was there.
Now there’s another aspect of this that again varies depending
upon who is the chief judge, so I can only talk about my experience. And
this is not necessarily a typical experience for every chief judge. You
can’t discuss with anyone outside the court the decisions of the court, the
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matters before the court, anything that would be sensitive. All of it is
highly classified, and you just can’t talk about it. I always tried to give
sort of at the end of the year a sense to the Chief Justice of how things
were going on the court and whether there were any problems that I
thought he needed to be or should be aware of. And in that context, I also
made recommendations to the Chief Justice with respect to filling
vacancies on the court. We usually had two vacancies every year,
sometimes more. Maybe on some occasions only one, but there are
always vacancies and the need to get new judges on the court. Because
there’s a statutory requirement to have at least seven circuits represented
on the court, you were always looking in particular circuits to bring a
judge on board. The Chief Justice doesn’t know all the judges out there,
nor does anyone, but I had access to some information that helped me to
make recommendations to the Chief Justice in that context, and I would do
so. I had a little bit more of a relationship with the Chief Justice and his
counsel than probably most presiding judges and other judges generally
would have because I would meet with him once a year and have a lengthy
discussion on these matters, including making recommendations. And for
one of the conferences every year, there was a luncheon at the Supreme
Court that he hosted and was present for, so there was that connection as
well. At that luncheon we had all the heads of the intelligence community
present in addition to the attorney general.
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MR. COONEY: Were there decisions from the court when you were there that proved to be
particularly problematic? What does the Chief Judge do if there is
something like that that comes along, and what would the response be?
JUDGE BATES: Well, no the Chief Judge has no independent responsibility to correct an
error by another judge. It may be that that arises in conversation, and it
may be that there are competing decisions by judges on an issue, but just
like on the District Court, if I issue a decision, my chief judge has no
responsibility if she thinks that’s wrong. That’s up to the appellate courts,
and there’s appellate review for decisions by the Foreign Intelligence
Surveillance Court as well. It’s harder to get those cases up on appeal just
because of the fact that there often isn’t an adversary, but there’s no
responsibility of the chief judge to correct it. Now that’s a formal answer
to your question. An informal answer to your question is just
communication, and there may be instances where the chief judge will talk
to a judge about a decision that that judge, he or she is about to enter if the
chief judge perceives some problem with it. And it may be that the legal
advisers would have a disagreement on things. So if there are such issues,
then the chief judge can get involved.
Now I do remember one occasion before I was chief judge but
while I was on the court where we had a very sensitive issue in dealing
with very sensitive problems that became widely known ultimately but
weren’t at the time, and there was some real disagreement among the
judges on the court about how to deal with it. What matters, specific cases
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if you will, were going to particular judges, and so those were the
responsibility of that particular judge to decide even though among the
court there was on the more general level some disagreement on how to
approach or handle the problem. That led incidentally, that very incident,
or series of incidents, led to a change in the practice of the Foreign
Intelligence Surveillance Court. There was a time when the Department
of Justice could discern who the judge the next week was going to be and
therefore would know or could make a decision on whether to file a matter
or not that week. Along with the departing chief judge and myself, we
agreed that we needed to change that so that the Department of Justice
could no longer ascertain who the judge on duty the next week would be
to cut down on what I’ll call forum shopping, so to speak, and we made
that change. But yes, sometimes informally there are those discussions on
particularly sensitive matters or matters on which there might be some
disagreement, but there’s no formal responsibility of the chief judge.
MR. COONEY: It sounds as if the formal pathway would be for the matter to get to the
FISC court of review if possible.
JUDGE BATES: That’s right. That’s the appellate court of review, and that’s the formal
means for review. But understand, it’s not quite as true today as it was a
decade ago because of some changes to the legislation, but it still is pretty
difficult to get a case up on appeal because if the decision is in favor of the
government, there’s often no other party involved in the matter in order to
take an appeal. Now we have amicus and other possible participants, so
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it’s more likely that there could be appellate review, but it still is an
imperfect process because it’s not an adversarial system.
MR. COONEY: I did see some references to amici curiae and also something to special
advocate, and I wondered if those are separate functions.
JUDGE BATES: They are separate functions. It’s more the amici that exists, and they
didn’t exist when I was chief judge. That’s a subsequent legislative
change that I resisted to some extent but supported to some extent. I
resisted it in its initial form, which was a broad-based participation by an
amicus in virtually every case because I thought that couldn’t happen
efficiently because you can’t really get access to the facts, you can’t go
and talk to the person who’s going to be surveilled because they can’t be
informed that they’re going to be surveilled. If they were, then it would
defeat the purpose of the surveillance. So I thought an amicus that was
involved all the time in all the cases wouldn’t make sense and would also
delay matters considerably. But a more limited amicus participation now
exists for the more sensitive and the more novel cases.
So there’s also for the chief judge, at least for me, there was a lot
of interaction with the Department of Justice. I set up a monthly meeting
with the Assistant Attorney General for National Security because I
thought that was a good way to air issues that either they had with the
court or the court had with them, and it proved to be very successful. I
had great relationships with the two Assistant Attorney Generals for
National Security who had the duty most of the time that I was there,
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David Kris, who’s now out on the West Coast, and Lisa Monaco, who’s
now the Deputy Attorney General. We had continuing close relationships
built on our cooperative efforts when I was in that role. Now it’s a
cooperative effort, but it’s an arm’s length effort because it’s the court,
and the Department of Justice is one of the parties before the court, but
there are bigger issues sometimes in terms of how things are being
handled or compliance problems and things of that sort that need to be
addressed and are better addressed in a less-formal setting to begin with
than by the court filing orders all the time.
So that’s basically life as the chief judge or presiding judge of the
Foreign Intelligence Surveillance Court. It was an interesting
responsibility and very active, busy responsibility. It’s on top of one’s
duties as a district judge, so I was stretched pretty thin during those years
working, I would say, pretty hard with that additional responsibility. Two
things that arose out of that that I think are worthy of mentioning in terms
of my life as a judge. One was, I said that we resisted meeting with or
even testifying before Congress. Absolutely true. But after I left the
court, but shortly after I left the court, just a few months, in the post-
Snowden context, pressure was put, I can’t divulge too much about this,
but pressure was put on the Chief Justice to agree to have someone come
and testify, have the Chief Judge of the Foreign Intelligence Surveillance
Court come and testify. The pressure was from the Senate, and the Chief
Justice contacted me even though I had left the position and there was
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someone else in as chief judge and said that he thought that he probably
needed to do that because of the sensitivity of the issues that were
percolating at the time in the post-Snowden world. It was a very sensitive,
difficult time in the intelligence community and for Congress. So it was
agreed that I would go and testify, to appear before the Senate, and I did
so. Now it wasn’t what you think of as a typical appearance before the
Senate, and this much is public, and I’m only going to say what is public.
It was a classified proceeding, but it has been made known that I did do it.
I went and appeared in the classified room in the basement of the Senate
that is very, very large, and all senators were invited to this proceeding.
Now there was a part of the proceeding that was also others who did
frequently testify before Congress, the Attorney General, the Director of
National Intelligence, the Director of the National Security Agency, but I
was there as something new. I think during my “testimony,” which was
much more being asked questions than it was giving testimony. I guess
that’s what testimony often is in the Senate. You’re making a statement,
but it’s mostly questions. I think I was told that just over half of the
Senate, over 50 senators, were present for that, which was a pretty
amazing turnout of senators for a proceeding, and it was an interesting
couple of hours. I don’t regret doing it. I think it was the right thing for
us to do. I got to explain some of the processes and some of the issues that
senators just don’t understand except for the few who were on the
Intelligence Committee, and so it was very worthwhile in that context. I
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didn’t get to satisfactorily answer some of the questions that some of the
senators had about changing things or about the court’s interpretation of
certain statutory provisions because I didn’t think it was appropriate for
me to give interpretations. That was one of the reasons that we resisted
testimony before the Senate in all contexts, because no matter what,
you’re always going to be asked for your view of something that the
Senate, or the House if it’s the House, will then move forward with, and
you’ve already committed to something. So as judges, we’re very
reluctant to do that, and that was true for the FISC as well.
I then went to the House, and it’s not possible to do the same kind
of thing with the House, but we had to do something with the House, and
so instead, I just went to the House Select Intelligence Committee and
appeared before them. It was then a Republican chair, but they were all
very polite, and I answered their questions as best I could. I think of those
who were present, which was most of the Committee, I don’t think it was
all, but most the Committee. It was a large Committee. I think the one
who seemed to be most up on the issues and most focused and
understanding and had intelligent questions was Representative Schiff,
who’s still very involved in these kinds of intelligence-related matters.
MR. COONEY: An unforgettable day.
JUDGE BATES: It was. There were two different days. The second thing that I wanted to
mention that arose out of my life on the FISC was that I have done a lot of
teaching over the years, not the last two years, but over the decade
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preceding that, teaching at both Georgetown and the University of Arizona
Schools of Law in the national security arena, principally on national
security surveillance. I have taught a course at both institutions and
enjoyed it very much but have not done it the last two years during the
COVID pandemic because the first time I did it remotely, it was fun, but
not as much fun, and I haven’t done it since. I don’t know if I’ll go back
to doing it in the future. With that, I’m going to make a suggestion. I
don’t know if you wanted to ask any questions on judicial philosophy.
MR. COONEY: No. That is a wonderful explanation of the function of the Court insofar
as you can describe it to an outside source.
JUDGE BATES: If you want to ask me anything on judicial philosophy, feel free to do so.
MR. COONEY: I’d like to do that, and then we can go to the major cases.
JUDGE BATES: Yes. And I’m going to make a suggestion on how we address those cases
a little bit in terms of the order.
In terms of judicial philosophy, that’s not a topic I’m altogether
comfortable with. I’m not much on assigning labels to my judicial
philosophy or my approach to judging. I do think labels can be dangerous.
They can pigeonhole you and corral you into a narrow view on things and
have the public or the bar think you have a narrow or predictable
approach. So I don’t really have identifiable judicial philosophies. There
are some obvious tenets that I think that have guided me as a judge, but
they are obvious. They are things like work hard at it, follow the rule of
law. The rule of law is very important in my thinking. Be fair and open190
minded. Search for justice. Listen to all sides, and don’t just listen, but
consider all sides of an argument. I think that’s very, very important for a
judge to do, and it certainly has been a guiding principle for me. Don’t be
afraid to make decisions, to decide something that’s before you. On the
other hand, don’t decide more than you need to. I think I have followed
that pretty closely throughout my judicial career. I’m willing to decide
matters. I try to do so timely, and on the other hand, I try not to decide
more than is necessary for the case that is before me.
I think it’s a principle of judging, that I believe is important, and
that is to respect everyone who’s involved. Treat everyone with dignity.
There’s a wide swath of the community that comes before you, either as
lawyers, as litigants, as criminal defendants. All of them deserve respect
in the criminal and civil justice process, and I’ve tried to insist on that
from myself and from those who work with me, and I hope that I’ve been
successful in doing so.
I think it’s important for judges to explain their decisions and their
conclusions and to do so often in writing. I think that is something that I
have tried to do. It’s also important for judges to get to the heart of the
matter efficiently and in a way that readers can understand. And the
reading audience is the parties, the lawyers, the bar, and the public. And
they all have to be able to, from different levels, but they all have to be
able to understand why a decision has been reached and to appreciate it
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and hopefully to respect it. I’ve always borne that in mind with writing
especially.
I guess I demand a lot of myself. I think I demand a fair amount of
those working around me, but always in a comfortable, collegial,
respectful fashion, and I’ve been really blessed with staff and law clerks
who have just been a joy to work with. I will say that I am still working
today with the two court staff who are most important to a district judge.
My courtroom deputy was the person assigned to me when I walked in the
door of the courthouse, and he still is, and we work on a daily basis
together. My court reporter is the court reporter who handled the first
matter that I dealt with and who is still the principal court reporter for me
in court. They are both wonderful people and court employees, and I’ve
been very fortunate to work with them throughout my career as a judge.
I guess another thing, and this reminds me of a question I was
asked during my one interview for this position, but I hope that I follow
the facts wherever they may lead, and I’m prepared to turn over whatever
stones are necessary along the way to getting at the truth in order to apply
those facts or apply the law to those facts to reach a decision. I’m
reminded of a question I was asked about what judges I admired on my
court, and I said Judge Lamberth because I thought he did turn over the
stones, even government stones, to find out what worms or snakes might
be beneath those stones, although his career was mainly with the
government. And Judge Gesell because I always felt that Judge Gesell,
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better than any other judge that I’ve appeared before, was able to get at the
heart of the matter and really focus on that one or two most crucial issues
in the case.
Obviously, as a judge you try to bring no presumptions,
preconditions, biases to the job, and I hope that that’s been a guiding tenet
for me. And obviously, for me, at least, I think you need to have
compassion and sympathy, translated into empathy, I guess, in the right
places at the right times. All of that is important. But looking at doctrines
or labels I don’t think is of a lot of help, at least not with me. I would say
I’m not an originalist. That’s an easy one. But I do start with the relevant
text on statutory interpretation or constitutional interpretation and
application, and I’m hesitant to rule inconsistent with a fair reading of a
statute or regulation. As a district judge, of course, your responsibility is a
little different. You’re responsible for following the law, not making it.
Much more the job of the court of appeals and ultimately of the Supreme
Court to make the law. The district court is more charged with the faithful
application of the law. But that’s not to say that occasionally we’re not,
especially in my court, doing much the same job as an appellate judge
because we have a lot of administrative law cases that start in the district
court.
As I said before, I think being timely is a crucial quality for a
successful district judge. Now, while I say I’m not an originalist, I
probably would not be labeled by others as an activist judge either. Not
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that those are two opposites, but they’re two different things. I don’t think
that people in the bar would say Judge Bates is an activist judge. I think
I’m a little more cautious, reserved and step-by-step. I tend to respect and
remember the limited role of the Judicial Branch and to place this branch,
and therefore me, at the right location in our tripartite system of
government, and that’s why often separation of powers issues and so forth
are things that I consider to be right up my alley, and I do see the role of
the judiciary as being a constrained role. But that doesn’t mean that we
don’t have lots to do and lots of interesting things to deal with, so let’s get
back to those interesting things unless you have any other questions about
that vague topic of judicial philosophy.
MR. COONEY: I have no questions. I’d say that you’ve given a very elegant explanation
of how you go about treating the people who are going to come before you
and are before you. Your explanation of how you treat your fellow
humans in an extremely tense situation is far more important than a
discussion of an abstract philosophy.
JUDGE BATES: I tend to agree with that, John, and I do think that the district judge on the
federal court, not as much as a local judge in the state system or the D.C.
system, but the district judge is the part of the judiciary that’s in contact
much more with the public, with the bar, and there’s a responsibility there
to be open, to hear what needs to be heard, but also to be respectful in
doing so because there’s a lot more interaction with the public through
jury trials, other proceedings in court, et cetera.
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MR. COONEY: I’ve read seven of your opinions this week, and I’d say step-by-step is a
very accurate short expression about your writing. You do an
extraordinary job of breaking down the arguments presented before you,
and then you work your way through each one of those things very
carefully, very considerately. And you do the same in dealing with
precedent, the way you go through the Supreme Court precedence and the
D.C. Circuit precedence, and then get to other jurisdictions. It’s quite
extraordinary the level of detail that you go into and how you’re able to
reach conclusions and wrap that up.
JUDGE BATES: I appreciate that, John. It seems to me that it might make sense at this
point to talk a little bit on the criminal law side, which is a big part of what
a district judge does but is not a big part of the opinions that you’ve been
reading. Most of them are going to be civil opinions, and that’s where
most of the lengthy opinion-writing occurs. But I don’t want to disregard
or give short shrift to the criminal law side of this job because from time
to time, it’s much more demanding than the civil side. And over the
course of time, it’s a large part of what we do. The criminal cases are
very, very significant, not only to those involved, but they are a significant
part of the job that a district judge does, and most of the events,
particularly pleas and sentencing, which in most criminal cases, it ends
with a plea and a sentence. Not a trial, but most of that is done by me
alone with minimal assistance from the law clerks. Whereas on the civil
side, the law clerks are much more fully engaged, particularly as we’re
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crafting long opinions. Pleas are generally taken by me without needing
any assistance from the law clerk. There are exceptions. When there’s an
exception, I ask a law clerk to look at something or to do something that
will help me with an issue that has popped up with respect to a plea.
Sentencings are the same way. It might be a little more likely that I would
turn to a law clerk to research some issue with respect to a sentencing
matter, but for the most part, largely those are done by me. There are far
fewer opinions written on the criminal cases than on the civil cases. I’ve
written some, obviously. You’ve read one or two, but there’s not a lot of
long opinion writing. Some of it is just suppression motions. Every once
in a while, there’s a legal issue, and then on occasion, there’s a
troublesome issue that arises in a criminal case.
Now, I had less experience on the criminal side than the civil side
when I came on the bench, so I had a lot of learning to do. It was a steeper
learning curve, if you will, to be comfortable with making decisions, with
entering rulings, with deciding whether evidence came in in cases, to
sentence someone. It was an area that I, and it’s true for a lot of judges,
not all, but a lot of judges, and very few judges have a lot of experience
sentencing people before they come on the bench. But it’s a pretty broad
range of cases in this court on the criminal side. You’ve got smaller gun
cases, some drug cases, although a lot of the drug cases we have turn out
to be fairly large, some of them international as opposed to local. We’ve
got political corruption cases. We’ve got fraud cases, other white collar
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crime. We’ve got terrorism cases. Cases of betrayal of the United States.
So lots of different things. It’s a sophisticated criminal docket, although
it’s not year in and year out an overwhelming criminal docket. We don’t
have the volume of cases that some jurisdictions have.
Cases, by the way, and I don’t think the public knows this, and
indeed, I doubt that most individuals coming onto the bench think of this
before they come on, but cases don’t end once you sentence someone. It
ends in the sense that you pack up your file – it’s all electronic these days
anyway – and you close the case. But there are a lot of post-sentencing
matters, either 2255 motions or violations of supervised release that occur.
So you’re seeing those cases in the future, in the habeas context or in the
violation of supervised release context, and those can be quite demanding
at times. So that is another part of the job on the criminal side.
Occasionally, a judge on this court gets a big case. It may be an
individual case. It’s more likely to be a multi-defendant case, a case
dealing with a RICO conspiracy or a large drug conspiracy, something of
those sorts that will demand a lot of time from the judge over a long
period of time. I’ve had a couple of those. I thought I’d talk a little bit
about one just as an example. This was a case with, there was one
defendant initially, and then I think fourteen defendants ultimately. It was
a case involving the activities of primarily former military in Trinidad and
Tobago who were conducting kidnapping rings in Trinidad and Tobago,
and unfortunately for them and for the victim, they kidnapped a U.S.
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citizen who was living in Trinidad and Tobago, and that victim died
during the kidnapping. They did not intentionally kill him, but they killed
him by ignoring his needs. This was a case brought by the United States
to stop that kidnapping and prosecute those engaged in this particular
kidnap. One case came to me initially, and that case happened to be of the
least culpable member, if you will, of this kidnapping ring, and he insisted
on going to trial right away, as was his right, and the government agreed.
We went to trial quickly, and he was acquitted. Meanwhile, the
government brought through extradition, I think it was fourteen other
individuals, here to the country. Now because the individual had died, the
individual victim had died, under the relevant statute that creates venue
and jurisdiction over this matter, you might think there wasn’t otherwise,
but there’s a federal statute. Under that statute, the sentence, if someone
dies during the kidnapping, is a mandatory life sentence. So this was a
serious matter for these fourteen defendants involved in this case.
There were tons of issues in the case. As you might expect, a lot
of legal issues because of the unique statutory setting and the kind of case.
There were lots of issues with respect to the conduct of the investigation
between those in Trinidad and Tobago, the law enforcement, and those in
U.S. law enforcement, and the coordination. There were ultimately Brady
issues of some consequence in the case and a multitude of other issues that
I had to deal with along the way. Ultimately, half of those defendants pled
guilty. Most of those pleading guilty did so on cooperation agreements, so
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there was a great sensitivity and a need to keep people separated, which is
something that we face in lots of cases where there are multiple
defendants. Those cooperators ultimately received, as I remember,
sentences in the range of ten to twelve years. Most of these people were in
their mid-20s to early 30s, and I think they got sentences in the ten- to
twelve-year range based on their cooperation, notwithstanding the
statutory mandatory life sentence for the charged offense. The others went
to trial, and the trial was a big management project for the court as these
trials always are for the judges who happen to have the multi-defendant
cases that go to trial. And with seven defendants in the courtroom and
seven attorneys at a minimum, it was something we couldn’t do today
with the pandemic, but when this happened a decade ago, we had some
logistical management issues as well as legal management issues and
wound up conducting the trial, dealing with all the issues either in limine
or as they popped up during trial, evidentiary and otherwise. All of the
defendants were ultimately found guilty by the jury and were, as the
statute required, sentenced to mandatory life sentences. The case was
appealed, and it went to the D.C. Circuit, and in an opinion that I think
was over 100 pages long, the D.C. Circuit affirmed me on every issue in
the case, which I was quite pleased about because usually on these big
criminal cases, there’s some problem somewhere with respect to some
defendant either in the charging, in the decision of guilt, the conduct of the
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trial, or the sentencing disparity, something, but I was affirmed 100% in
that case, and took that appellate decision with some pride.
Now, I mentioned to you earlier that cases don’t end upon
sentencing or even upon appeal. There were some habeas petitions filed,
but ultimately what happened in this case was there was some alleged
misconduct by one of the prosecutors, and it was more than a frivolous
allegation. It might not, and I think may not, have been a successful
challenge ultimately, but it was more than frivolous. As the government
was defending the habeas 2255 petitions, they ascertained some things
beyond what the defense knew with respect to some issues regarding this
prosecutor, mainly outside of this case, but it made it difficult for them to
rely on the prosecutor on some issues that I had required a proceeding on
that would probably necessitate testimony. So the government ultimately
agreed to provide relief to these individuals in the form of reducing their
sentences and convinced me that I should go along with that, and I did go
along with that. I demanded a lot from the government in order to go
along with it, but I was satisfied that ultimately it was the right decision,
and their sentences were all reduced down to the roughly 18-year arena,
and they are all now I believe out of prison because they had a lot of time
from the date of their arrest until the trial went forward, and they were
detained that entire period of time, and with some good time credit for
some of them at least, they all have now been released from prison. Not a
100% unsatisfactory result because even though this was an atrocious case
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deserving of a very, very serious penalty, it was a case where the victim
died not through intentional conduct by most of the defendants, and so
something less than a life sentence was not totally unwarranted. They all
received lengthy prison sentences, but mainly because of the problem with
the prosecutorial activity, primarily outside the context of this case, they
ultimately got some relief.
With that, perhaps the best case to start with would be the one
criminal case that I gave you on the list, which was the Quinn case, I
think?
MR. COONEY: The Quinn case, which is criminal case that involved suppression of
material evidence by the prosecutors in violation of the Brady doctrine.
JUDGE BATES: In the case that I just described to you, there were Brady issues, and I
found against the defendants on those Brady issues for the government,
and that was affirmed by the D.C. Circuit, although there were one or two
issues that were close and difficult, and the D.C. Circuit acknowledged
that as well, but I found for the government.
The Quinn case is that unusual case for me, at least, and for most
judges I am confident, where relief was warranted because of Brady
violations. This was an example of the type of problems and issues that
may arise in difficult criminal cases. The case dealt with violations of the
Iranian trade embargo, so in some ways, it had commercial overtones, but
in other ways, it had national security overtones. Quinn was convicted by
a jury and sentenced to a couple of years of imprisonment. Not a long
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sentence, but a meaningful sentence of imprisonment was received as a
result of this. I allowed him to challenge the case on appeal postsentencing
without being detained. He had not been detained pre-trial or
post-trial awaiting sentencing, and that allowed him not to be detained
while a challenge was raised in the court of appeals. But ultimately, that
challenge in the court of appeals was not really important because this
case dealt with indirect shipments through another country, and so it was a
little more complicated than otherwise might have been the case, and a
key to the government’s case was the testimony of Quinn’s supervisor.
That was a very important link in the government’s evidence both in terms
of deciding to indict, getting an indictment returned, and in terms of the
pre-trial proceedings and the anticipated trial proceedings. So the defense
was consistently arguing that the supervisor was lying, was not telling the
truth about what had happened, and mainly with respect to whether Quinn
was told to go ahead with these indirect shipments through another
country.
Ultimately, the government came to doubt the supervisor and
whether the supervisor was telling the truth, primarily because of
reviewing more closely, as they started to put together the case for trial,
some emails. When they came to doubt the veracity of this key witness, a
witness who was really supposed to be a primary element of their case and
for the defense, was a primary vulnerability of the government’s case, the
government did not inform the defendant of its doubts as to the veracity of
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this supervisor witness. What they did instead was they just didn’t call
him as a witness, even though they had listed him as a witness, had
intended to call him in the pre-trial proceedings, and had given the defense
every reason to believe that he would be called, and indeed, the defense
had built its defense in expectation of cross-examining this supervisor.
There even was testimony from an agent with respect to what the
supervisor had said, some of which came in during the trial.
Then Quinn was convicted, and he went forward to sentencing, and
the government still did not inform the defendant or the court of its doubts
about the supervisor witness. At the end of the day, post the sentencing of
Quinn, the government accepted a plea from the witness, post-sentencing
of Quinn, to making a false statement and actually convicted him by a plea
of that offense. When that came to light during the course of the appeal,
the defense said to the court of appeals, wait a minute. This is something
probably that Judge Bates needs to address in the first instance, and the
court of appeals agreed, and so it was basically one of these situations
where it was remanded to me to give my view on that specific issue, and I
gave my view.
It was a serious Brady problem, and ultimately, I concluded a very
serious Brady violation. These were experienced prosecutors. That meant
that this was a very big deal for them. As a prosecutor, you don’t want to
be found to have violated Brady. Particularly you don’t want a conviction
thrown out because of your Brady violations. So this was a big deal, and I
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treated it as such and issued a lengthy opinion, which you’ve seen, that
concluded that Brady had been violated both at the trial setting and in the
sentencing setting. In other words, the Brady violation had occurred not
just with respect to trial and his conviction, but also then a second time, if
you will, with respect to sentencing because the government did not
divulge this problem in sentencing either, and that non-disclosure was
ultimately the problem because the government knew enough, it had
sufficient doubts, if you will, to raise its Brady obligations, and the
defendant, in my judgment, had been prejudiced, particularly because the
government agent, who was a witness in the case, could not be crossexamined
based on the doubts as to the veracity of what the supervisor
was telling them.
I also found a due process violation, but the thrust of the opinion is
really a Brady violation. I think there have been only two occasions where
I found Brady violations, and the other one was a much more minor thing,
and probably of five or six meaningful Brady issues being raised in cases.
It doesn’t get raised in every case, and sometimes it’s frivolous when it is
raised. I recently had one where there was a Brady issue raised during the
case, but it sort of evaporated, but I felt that I had to correct it at the end of
the case, at the sentencing, by saying that I did not think it was a violation
even when it occurred. But here, I clearly felt there was a Brady violation
and issued a decision to that effect. It was not challenged on appeal, and
the conviction was thrown out based on this violation, and the government
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did not proceed again against Quinn. Who knows, I think probably with
the supervisor truthfully testifying at trial, probably Quinn would not have
been convicted. It was a close case for the jury anyway I thought, so
justice was done only at the end of the day because, of course, Mr. Quinn
had to suffer through the consequences of being indicted and ultimately
tried and sentenced for the offense. This was a significant criminal case in
terms of dealing with these kinds of problems that arise in criminal cases.
Now, criminal cases are always here. Sometimes they’re busier
than other times. The last year has been an extraordinarily busy time on
the criminal docket of our court because of the January 6 Capitol cases,
but most of the cases over the course of time are routine criminal cases,
gun cases, smaller drug cases. But I think it’s always important for a
judge to make sure that she or he takes that step back and remembers that
every criminal case is exceptionally important to at least one person, and
more likely to more than one, to the defendant, to any victims, and to
family. These are very, very important events in people’s lives, and they
need to be taken seriously by the criminal justice system of which we are a
part.
So that’s what I sort of wanted to divert on with respect to criminal
cases, and I know it’s taken some time, and I apologize for that, but I
thought that was necessary to round out the work that is done as a federal
judge and that I’ve done over the two-plus decades that I’ve been here,
because if you just look at opinions, it looks like all we do is civil cases.
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MR. COONEY: Quite extraordinary. You seem to have memorized what you wrote in
2008.
JUDGE BATES: Well I’ve gone back and looked at these cases. I’m not remembering them
off the top of my head. Like you, but it’s probably a quicker read for me.
I’ve gone back and glanced at these cases, otherwise I would undoubtedly
confuse issues in one case with another. Where do you want to go next?
MR. COONEY: The next issue on the list is the Committee on the Judiciary of the U.S.
House of Representatives versus Myers. It’s a very interesting opinion. It
must have been mandatory reading for all the lawyers who are working for
the January 6th Committee, and it must have a long lifespan for the
lawyers who are handling the litigations that have come out from the
January 6th Committee where people were subpoenaed to testify before
the Committee and they refused to when they invoked absolute executive
privilege for their reason for not doing that. You had anticipated all the
work that they were going to have to do and have done their research for
them. At least going back deep, there has been Supreme Court decisions
since then, that going back and really getting to the heart of the matter
about the claiming executive privilege, you knocked the ball out of the
park.
JUDGE BATES: I would say that even more than the January 6th Committee during
President Biden’s presidency, it was an important case during the Trump
presidency with the investigations that went on and the decisions by the
Trump administration, officials in the Trump administration, not to
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cooperate with Congressional subpoenas. This was a decision that, as you
said, had some lasting impact until this year, not 2022, but stretching back
to the end of 2020 to now. Until that, it was really viewed as the leading
authority on the obligation of high government officials to respond to
congressional subpoenas. In other words, not just to ignore them and
refuse to appear. It’s an executive privilege context, but it’s not an
executive privilege decision because it doesn’t decide the assertion of
executive privilege. It just deals with the process and what is or is not
appropriate in the process. It was a major separation of powers test and
contest between the Committee on the Judiciary of the House of
Representatives and the White House because the person being summoned
was Harriet Miers, then the White House counsel. It was only more
recently with the McGahn litigation, again dealing with a congressional
subpoena to the White House and specifically to the White House counsel
that another decision was rendered, and that was Judge ’s decision a yearand-
a-half ago in the McGahn case which followed to a T my decision in
the Miers case and really relied predominantly on the Miers decision. So
this is a real conflict in Washington between, in this instance the White
House and the House of Representatives, and the question is whether a
former White House senior official, the White House counsel in this
instance, has to respond to a congressional subpoena by appearing and
selectively claiming executive privilege as to specific questions or areas of
questions, or may she instead simply refuse to respond, which was the
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position of the administration, at that time, the Bush administration. The
context was the investigation of the mass firing of U.S. attorneys that had
occurred, and for months there was bickering and negotiation between the
House Committee and the White House, and eventually they reached an
impasse, and that’s fundamental to this matter. It’s a fundamental part of
the Judiciary actually becoming engaged and rendering a decision on the
matter, because until that impasse is reached, it really isn’t appropriate for
the Judiciary to enter the fray or step in to resolve the dispute. It’s only
when that impasse is really insurmountable that the Judiciary should get
involved. Otherwise, separation of powers or whatever doctrine, whether
it be political question or some other doctrine, says Judiciary, stay out of
it. This is a question between the two elected branches for them to work
out. Once there’s an impasse, then the Judiciary can and should get
involved because deciding subpoenas is something that’s not foreign to the
Judiciary. It’s not like some other questions that might be really stretching
the Judiciary’s expertise or involvement. The way this ultimately was
addressed was primarily through that oh-so-typical doctrine of standing.
Once again dealing with legislative standing, if you will, for the
Committee on the Judiciary to bring a case to court challenging the
resistance of the White House to even appearing in response to a
congressional subpoena.
The case was unlike some of the cases we’ve discussed already,
the Raines case from the Supreme Court, the Walker versus Cheney case
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that I issued, because here you have the full House approving the
subpoena issued by the full Committee, a contempt citation, and a suit, all
of which had been approved by the House of Representatives. So you
weren’t dealing with a personal injury. That wasn’t really the question.
Instead, you had an institutional injury to the House of Representatives
itself. The Committee had been designated by the House of
Representatives to vindicate that institutional interest of the House of
Representatives in basically being stiffed by the Executive Branch in the
face of a congressional subpoena. This type of dispute between the
branches traditionally would be resolved by the Judiciary. There’s some,
there’s not a lot of authority, but there are some lines of authority in terms
of D.C. Circuit decisions that really supports that. In addition to cases,
there also were OLC opinions to draw on, and I did that as well. There
wasn’t really a question as to the legitimacy of the congressional
investigation. Sometimes there might be such questions. Those were
more typically pressed during the Trump years in response to some of the
congressional subpoenas. There really wasn’t a question as to legitimacy
of this congressional investigation.
I also had to deal with the question of a cause of action, and I did
find that there was a cause of action derived from the Constitution, and
that that could then proceed under the Declaratory Judgment Act. That
too is a complex issue. The Article I authority of Congress to investigate
sort of as an adjunct to its authority to legislate, I found did provide a right
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that was injured and therefore could be vindicated through a suit in federal
court under the Declaratory Judgment Act.
All I decided, however, was that Ms. Miers was required to appear
and respond to the subpoena, so she would have to respond to the
questions asked. Now, she might raise executive privilege to some of
those questions, but she had to go through that process in order to wind up
with a more narrow dispute on particular subjects or questions as to
whether an executive privilege assertion was appropriate. But this case is
about how you get there and the process that’s necessary, and that it is
required under our legal authorities that Executive Branch officials
respond to the legitimate congressional subpoena and appear and assert
privilege where appropriate, not simply decline to appear, saying some or
all of this is executive privilege.
So I think it’s a narrow decision. I didn’t decide more than was
necessary to decide, and as I said, other cases followed it in years
afterwards, and until the McGahn decision, it really was the leading
decision in this area, an important area, but not an area that’s frequently
the subject of litigation. The case was appealed. There were further
negotiations between the two branches that continued during this period.
And then, of course, there was a change of administration, and with the
change of administration, this was worked out, if you will. But as part of
the resolution of the matter between Congress and the White House, it was
agreed that my decision in the case would not be vacated, that it would
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remain on the books. Otherwise, one might have argued it’s moot, and
therefore should be vacated. But there was an agreement between the two
sides that it should not be vacated.
Now as I said, the McGahn case stepped in as another authority,
and maybe now the leading authority. Who knows. It hasn’t been applied
since. That case, of course, went to the D.C. Circuit after Judge Jackson
agreed with my approach, and the D.C. Circuit, initially the panel, said no
standing, in a similar context with a congressional subpoena authorized by
the full House and by the committee of the full House. But then the court
took it en banc, and in a pretty overwhelming vote, not all the judges on
the court, I think there were only nine judges who participated, so it would
have been a 7-2 opinion, they decided there was standing. The case went
back down to the D.C. Circuit, which found no cause of action, but I think
that too was vacated. I don’t have the exact history at hand, but I believe
that ultimately happened. Miers was one of the most enjoyable cases I
had, some interesting issues that required a lot of deep digging and careful
thought and I think has stood the test of time fairly well.
MR. COONEY: It covered a lot of history. Very interesting. Having looked through the
Nixon investigations to now see the full judicial explanation of how those
issues were treated.
JUDGE BATES: We’ve been at this for almost an hour-and-a-half. Maybe we should do
one more case in the interest of getting a little more done and try to be a
little more abbreviated, and this will be before we get to the year, I guess it
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would be September 2010 to September 2011, which was a ridiculously
demanding year for me because of two cases that I dealt with during that
time period. We’ll talk about those next time. First, maybe it makes sense
to talk briefly about Al Magaleh versus Gates, which is sort of a
continuance of the Guantanamo series of cases that the court and I dealt
with. Does that make sense?
MR. COONEY: Yes. That makes perfect sense. It’s a perfect case to draw the connections
back to the Guantanamo decisions.
JUDGE BATES: This was a case dealing with the application of Supreme Court authority,
the seminal Supreme Court decision in Boumediene dealing with or
confirming actually, the habeas corpus rights of detainees held at
Guantanamo. The case dealt with the application of that decision to
detainees held at Bagram Air Base in Afghanistan after their arrest
elsewhere. So basically what you have factually was individuals arrested
in the, let’s call it the “war on terrorism,” although that’s an overused
term, outside of Afghanistan, individuals arrested and then instead of
being brought to Guantanamo where the Supreme Court has decided there
are habeas corpus rights of those detainees, they were brought to Bagram
Air Base and detained and questioned and so forth there. Close case. No
question it was a close case. Difficult case, interesting case. I concluded
that the suspension clause did extend to, and therefore habeas corpus must
be available for, three of the four petitioners in this case. There was one
petitioner who was an Afghan citizen and being held at Bagram Air Base
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in Afghanistan, and I had a different analysis for that individual. But for
the other three petitioners, I decided that they did have habeas corpus
rights based on Boumediene. And essentially it was applying the multifactor
test from Boumediene to these individuals at this location.
Ultimately, the D.C. Circuit reversed and disagreed with my analysis with
the application of those factors that I had engaged in. It really turned on
applying a three-factor test in Boumediene that I divided out into six
factors, but whatever, it was a novel case, a novel application. So some of
the factors were exactly the same. Citizenship of the individuals, they
weren’t U.S. citizens. The status of the individuals. They had been
determined to be enemy combatants. The site of apprehension.
Somewhere other than the place of the incarceration. All of those
considerations were the same, except for that one individual that I
mentioned because his citizenship did coincide with the place of detention.
But for the others, those factors were the same. The adequacy of the
process to determine the status of the individuals, that was pretty close to
that that pertained for Guantanamo detainees. It was a little different. It
was a little less actually, but it was pretty close, so that wasn’t a
determinative factor. It was the other two factors that really determined
the outcome here. The two keys were the site of the detention, what were
the characteristics of the site of the detention, and were there any practical
obstacles involved in extending habeas corpus to Bagram as opposed to
Guantanamo. In the end, it was less control by the United States at
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Bagram than at Guantanamo. Even though it was on the military base,
there were constraints in terms of how free the United States was to do
what it wanted and what limitations applied. So there was less control of
the site of the detention in this case at Bagram than there was for the
United States at Guantanamo where there were treaty considerations that
gave the United States much more longer-term control. And on the
practical obstacle side, there were somewhat greater practical obstacles in
the battlefield setting of Bagram than at Guantanamo, which was off of
and far away from the battlefield. The D.C. Circuit saw these differences
as being bigger than I did, and hence that swung the analysis for them, so
that the Suspension Clause and habeas corpus did not apply to detainees
taken to Bagram rather than to Guantanamo. It was a close case. There
was no question about it, and I just saw it a little bit differently, except for
that Afghan detainee for whom it was a much greater potential of friction
with the Afghan government, and that was determinative for me in terms
of the practical obstacles. So, an interesting case, a hard case. I’m not
prepared to say that I was wrong. Other judges saw it a little bit
differently than I saw it. I have a world of respect for the decision of the
D.C. Circuit in this case. It was a careful analysis by judges I respect and
their conclusions certainly are worthy of consideration and approval. But
that doesn’t necessarily mean that I think I was wrong in my assessment.
It was a difficult assessment, and until this day, I think there’s something a
little bit uncomfortable or distasteful about the prospect of the United
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States being able to seize two individuals in, let’s say Indonesia.
Everything else about them in terms of the seriousness of their conduct
and everything else is the same except the United States decides okay,
we’re going to take Individual A to Guantanamo, and we’re going to take
Individual B to Bagram Air Base then. We don’t have a Bagram Air Base
now because we don’t have a presence in Afghanistan, but then, to take
the other individual to Bagram Air Base and have there be different
results.
MR. COONEY: You’ve made that point several times in the opinion. The government
could control the outcome of the matter by deciding in which jurisdiction
to incarcerate the person.
JUDGE BATES: Which plane to put them on and take them somewhere. So again, these
are the kinds of issues that came up in the Guantanamo arena occasionally.
Difficult, novel issues because the most important thing to remember
about the Guantanamo cases is that the judges were generally writing on a
clean slate because there wasn’t a lot of precedent. There wasn’t a lot of
history, and even as they got to the Supreme Court, these cases really were
novel cases, and the Supreme Court had to deal with them in a novel
context. And the Supreme Court by and large in terms of the process for
litigation said that’s going to be up to the District Court. We’re sending
that back down to the district court. Let the district court figure that out,
and the district court did with the help from the D.C. Circuit at various
points along the way. So maybe that’s a good point to end on for the day.
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MR. COONEY: Three big cases, I think this may be a good time to call it a day.
JUDGE BATES: And we’ll have to figure out when the next day will be. Let’s not try to
figure that out now with our calendars, but I’ll get in touch. I’ve got some
travel coming up and some busy times, but we’ll find a day.
