Valerie Caproni, up for judgeship in important terrorism court, likely to come under fresh scepticism in wake of NSA revelations

A former senior FBI official implicated in surveillance abuses is poised to become a federal judge in one of the US's most important courts for terrorism cases.

Valerie Caproni, the FBI's top lawyer from 2003 to 2011, is scheduled to receive a vote on Monday in the Senate for a seat on the southern district court of New York.

Caproni has come under bipartisan criticism over the years for enabling widespread surveillance later found to be inappropriate or illegal. During her tenure as the FBI's general counsel, she clashed with Congress and even the Fisa surveillance court over the proper scope of the FBI's surveillance powers.

And Caproni faces renewed skepticism for describing surveillance conducted under the Patriot Act as more limited than it actually is, now that the Guardian has revealed and the Obama administration confirmed that the National Security Agency uses the act to collect and store the telephone records of hundreds of millions of Americans.

"It is a shame that the White House has chosen to nominate former FBI general counsel Valerie Caproni to a lifelong position as a federal judge given her narrow views of Americans' privacy rights as demonstrated by her actions in the George W Bush administration," said Lisa Graves, a Justice Department official in the Clinton and early Bush administrations.

"Government officials that secretly approved of overbroad surveillance programs the public is only seeing now because of leaks, and whose testimony on the issue obscured rather than revealed these abuses, should be held to account for their actions in a public forum," said Mike German, a former FBI agent.

German, now a lawyer with the ACLU, would not comment on Caproni specifically, citing ACLU policy of neutrality on nominations. But he continued: "Excessive secrecy always threatens democracy, but misleading and incomplete testimony before Congress and the courts simply cannot stand unaddressed without doing real damage to constitutional government."

A Senate staffer who requested anonymity predicted that Caproni would probably win confirmation, but added, "lots of procedural options are available to gum up the works" when her nomination moves to a Senate floor vote.

A representative of the defense company Northrop Grumman, where Caproni currently serves as an executive, said Caproni was not available for interviews.

Even before the Guardian's phone records revelations, provided by NSA whistleblower Edward Snowden, lawmakers found Caproni to be complicit in surveillance abuses.

A 2010 report by the Department of Justice's internal watchdog found that the FBI misused a type of non-judicial subpoena known as an "exigent letter" to improperly obtain more than 5,500 phone numbers of Americans.

"The FBI broke the law on telephone records privacy and the general counsel's office, headed by Valerie Caproni, sanctioned it and must face consequences," said John Conyers, then the chairman of the House judiciary committee, in April 2010, who called for then-FBI director Robert Mueller to fire her.

Conyers said he was "outraged" that the FBI invented "exigent letters" to more easily obtain phone records, and intimated Caproni was responsible for it. "It's not in the Patriot Act. It never has been. And its use, perhaps coincidentally, began in the same month that Ms Valerie Caproni began her work as general counsel," Conyers said in a hearing that month. The FBI stopped using exigent letters in 2006.

Lawmakers' dissatisfaction with Caproni over surveillance has a long pedigree.

In an April 2008 House hearing, Caproni told lawmakers that if a phone number obtained from a telephone company using a nonjudicial subpoena ostensibly authorized by the Patriot Act was unrelated to a "currently open investigation, and there was no emergency at the time we received the records, the records are removed from our files and destroyed".

In fact, the NSA, at the time of Caproni's testimony and today, stores phone records such as phone numbers on practically all Americans for up to five years, whether or not they are connected to an "open investigation".

Numerous intelligence, Justice Department and law enforcement officials have testified this summer that the NSA can pass phone records to the FBI that it has "reasonable articulable suspicion" are connected to terrorism, although NSA deputy director John C Inglis could not cite a single case where the phone records have clearly disrupted a domestic terror attack.

"Caproni knew that the Bush administration could use or was using the Section 215 provision in the Patriot Act to obtain Americans' phone records on a broad scale, an issue that has recently been documented by the whistleblower material first printed in the Guardian," said Graves, a former deputy assistant attorney general who dealt with Caproni extensively while working on national security issues for the ACLU.

At one meeting in 2007, Graves recalled, "Caproni said she thought civil libertarians were wasting their time complaining about the NSL [national security letter] powers because the government could just obtain all that information and more through a 215 order by the Fisa court or through a grand jury subpoena issued by a single federal prosecutor and because those orders are secret we would never know. When pressed about that, she insisted that going around the limits on the NSL powers by using 215 or grand jury subpoenas was no big deal and a perfectly permissible use of those powers."

Graves said: "That may be technically true, but it also demonstrates her lack of regard for Americans' countervailing interest not to have records about their communications or business transactions swept up in secret by government agencies without any indication that they themselves have done anything wrong."

In 2007, the Justice Department's inspector general found "widespread and serious misuse of the FBI's national security letter authorities" to obtain business records, including "unauthorized collection of telephone or internet email transactional records," as the inspector general, Glenn Fine, summarized in March 2007 House testimony. That finding did not even hint that the collection of phone records in secret was even more widespread.

Without disclosing the full scope of the surveillance, Caproni called the improper collection of those phone records "a colossal failure on our part".

Acknowledging bipartisan anger on the House judiciary committee, Caproni testified: "We're going to have to work to get the trust of this committee back, and we know that's what we have to do, and we're going to do it."

A 2008 Justice Department inspector general's report into surveillance under the Patriot Act found that Caproni clashed with the Fisa court, a secret court that oversees surveillance for the purposes of foreign intelligence, over the scope of the court's authority.

The heavily redacted report found that in 2006, the Fisa court indicated it would not sign off on an FBI request for business records under section 215 of the Patriot Act – the section used to justify the bulk phone-records database – "because of first amendment concerns." It is extremely rare for the Fisa court to deny the government a surveillance request.

Caproni, the FBI's general counsel at the time, "told the OIG [office of inspector general] that the Fisa court does not have the authority to close an FBI investigation," according to a footnote in the report.

Caproni "believed there was enough information to predicate the investigation", the Justice Department inspector general found. "She said she disagreed with the court and nothing in the court's ruling altered her belief that the investigation was appropriate."

Because of redactions, it is unclear if the FBI investigation in that case continued against the Fisa court's objection.

While Caproni's nomination by President Obama has largely flown under the Washington radar, it has not been without controversy. Senator Chuck Grassley, the ranking Republican on the Senate judiciary committee, threatened in June to block Caproni's impending judgeship when it goes for a vote on Monday.

Grassley had been seeking records from the FBI about the exigent-letters surveillance controversy for at least six years, only to be told by Caproni in 2008, when she was the FBI's top lawyer, that "that the documents I was waiting for were on her desk, awaiting her review", Grassley said on the Senate floor June 13.

Having not received the documents he wanted, Grassley warned: "While I did not hold Ms Caproni's nomination in committee, I reserve my right to do so on the Senate floor." Grassley's office did not return requests for comment about his plans for Caproni's floor vote.

In order to win approval from the Senate judiciary committee, Caproni had to take the rare step of vowing to recuse herself from a broad category of cases "where my impartiality could be reasonably questioned", including those where "I had personal or supervisory involvement in a matter while at the FBI."

"I would certainly recuse myself if I were presented with a case that would require me to rule on the legality of a national security program as to which I provided legal advice while I was a government employee, unless there was controlling precedent already in place regarding such a program," Caproni wrote to senator Richard Durbin on 8 July.

Caproni will be very likely to hear many of those cases as a federal judge. Her nomination is for one of the country's most important federal courts for terrorism cases: the southern district court of New York.

"The southern district of New York has historically been the premier venue for terrorism cases. Today, many of the most high profile of these cases continue to find their way into this district court. Its historical memory, and the experience of its judges, are second to none," said Karen Greenberg, director of Fordham University's Center on National Security.

"For all of her virtues, you have to think twice about putting someone on the court with this level of concern about her role in surveillance abuses," Greenberg said. "The symbolism of this is significant. The courts are torn over this issue."