On Special and Public Interest Advocates

President Obama’s NSA review panel revealed 46 recommendations for NSA/IC reform yesterday, including one on reforming the Foreign Intelligence Surveillance Court, or FISC. The recommendation has four components: a new Public Interest Advocate “to represent privacy and civil liberties interests” at the FISC; increased access to outside technological expertise; instituting existing declassification reviews to increase the court’s transparency; and redistributing the Chief Justice’s monopoly on FISC appointments among all Supreme Court justices.

Implementing the latter three propositions could be straightforward depending on the final details. The panel’s idea for appointments reform in particular — letting each of the nine Supreme Court justices choose “one or two members of the FISC from within the Circuit(s) over which she or he has jurisdiction” — is a simple, common-sense solution to the problem it fixes. How much resistance the NSA and the IC offers to increased transparency on FISA files or to outside technologist input during proceedings will likely depend on the White House’s level of enthusiasm for the proposed reforms overall.

But the panel’s Public Interest Advocate proposal deserves further analysis. It mirrors the Special Advocate position found in the NSA reform legislation proposed by Rep. Jim Sensenbrenner and Sen. Patrick Leahy. (I wrote at length about the Sensenbrenner-Leahy version of the Special Advocate position in October.) Both advocates would be officially tasked with representing the privacy rights and civil liberties interests before the FISC. But there are significant differences between the powers each advocate is given to fulfill that role.

One difference between the two advocates is in the panel’s favor. They recommended that the Public Interest Advocate would be able to intervene in cases under her own initiative. This is an improvement over the Special Advocate in Sensenbrenner-Leahy, who can only be summoned by the presiding FISC judge in each case.

But the Public Interest Advocate would also be far less independent. He or she would lack a counterpart to the Office of the Special Advocate created in the Sensenbrenner-Leahy bill, for example. The panel, perhaps with a hint of naïveté, also worried that “[b]ecause the number of FISA applications that raise novel or contentious issues is probably small, the [Public Interest] Advocate might find herself with relatively little to do.” To solve this invented problem, “it might therefore be sensible for the Advocate to have other responsibilities,” including a seat on the Civil Liberties and Privacy Board that would oversee the entire intelligence community. (Even the panel itself acknowledges the potential conflicts of interest this would create.) An advocate who could focus exclusively on his or her domain within the FISC system would be stronger.

There are other weaknesses. No mention is made of either the Public Interest Advocate’s tenure (the Special Advocate would serve a three-year term), nor of the appointment process (the Chief Justice appoints the Special Advocate from among candidates proposed by an executive-appointed board). The panel even suggests Congress could “outsource” the position’s responsibilities either to a law firm or a public interest group. None of these suggestions indicate a desire by the panel to give their advocate position any institutional heft.

But the most glaring omission from the panel’s Public Interest Advocate is legal standing. I wrote in October how statutory legal standing would resolve the catch-22 created by the Supreme Court’s recent (but pre-Snowden) decision in Clapper v. Amnesty Intl. and open up FISC rulings to appellate review. The Special Advocate under Sensenbrenner-Leahy would be directly empowered by Congress to bring FISC cases directly before the Supreme Court, a previously nigh-impossible task. But no such power is recommended for the Public Interest Advocate by the reform panel, either implicitly or explicitly. Whereas the Special Advocate could potentially bring the FISC into full communion with American constitutional jurisprudence, the Public Interest Advocate would simply exist to legitimize current practices.

It’s possible the panel doesn’t appreciate why exactly the FISC is anathema to the American system of justice in its current form. It’s troubling enough that the FISC makes far-reaching interpretations of the Fourth Amendment without an adversarial judicial process. But far more disturbing is when a secret court can set secret precedents limiting the Fourth Amendment’s protections without any meaningful judicial review. If a state court or a federal district court errs in its Fourth Amendment interpretation, a defendant can reverse the error through the appellate courts. If the FISC deviates from the constitutional norm, as a federal judge ruled this week that the NSA’s Verizon metadata order did, no American citizen could lawfully learn about it for decades — if ever.

This is why the Special Advocate’s power to bring FISC cases before the Supreme Court is so vital. The Constitution is the supreme law of the land, and the duty to interpret that law rests ultimately with the nine justices. By keeping the FISC beyond the justices’ reach, Congress would essentially create two supreme courts for our republic: one whose rulings are taught at every law school and invoked in every courtroom, and one whose constitutional interpretations we must rely upon Edward Snowden alone to discover.

Best Friends For Now

It’s been a rough year for Riyadh. Saudi Arabia’s most powerful ally, the United States, struck high-profile diplomatic deals first with Syria and then with Iran, their most hated foes. The threat of U.S. military intervention in both countries is now receding, and relations with Iran might even be reaching something less than outright hostility. And the House of Saud is voicing its long-simmering displeasure in public:

[...] And yet rather than challenging the Syrian and Iranian governments, some of our Western partners have refused to take much-needed action against them. The West has allowed one regime to survive and the other to continue its program for uranium enrichment, with all the consequent dangers of weaponization.

This year’s talks with Iran may dilute the West’s determination to deal with both governments. What price is “peace” though, when it is made with such regimes?

The foreign policy choices being made in some Western capitals risk the stability of the region and, potentially, the security of the whole Arab world. This means the Kingdom of Saudi Arabia has no choice but to become more assertive in international affairs: more determined than ever to stand up for the genuine stability our region so desperately needs.

The anger behind this statement is almost as transparent as the insecurity it reveals. Saudi Arabia and its fellow Sunni Gulf monarchies in Bahrain, Kuwait, Oman, Qatar, and the United Arab Emirates are strong American allies, but they’re not durable ones. What happens when — not if — the United States abandons them?

America’s relationships with these countries, especially with Saudi Arabia, have always been anomalous. Major U.S. allies are generally stable liberal democracies who share similar political and socio-cultural values. (This wasn’t always the case, especially during the Cold War, but it’s getting better.) Canada, Australia, New Zealand, and the United Kingdom share a language, a common heritage, and deep cultural ties. France, Germany, the other European democracies in NATO, and Israel are bound to the United States by the turbulence of history and a shared worldview. Japan, South Korea, and the Philippines were practically rebuilt in the American image in the second half of the 20th century. More often than not, America prefers allies who resemble America.

So what does the United States share with the Gulf monarchies beyond a common Persian foe? Certainly not America’s republican ethos. All six GCC members are either absolute monarchies or cosmetically-constitutional ones. Bahrain, with their neighbors’ armed support, violently cracked down on Arab Spring protesters in 2011 while the United States looked the other way. A Saudi political activist had the temerity to argue earlier this month that the Kingdom should embrace constitutional monarchy; for this, a secret court sentenced him to 300 lashes.

Nor do the Gulf monarchs share the deep American respect for human rights. Legal protections for women’s rights, LGBT rights, and religious and ethnic minority rights are limited or non-existent. For those not fortunate enough to be born male, straight, or Muslim in most of these countries, persecution is the norm, not the exception. Five of the six are rated “Not Free” on Freedom House’s Democracy Index; Kuwait alone stands at “Partly Free.” Saudi Arabia still hasn’t even signed the Universal Declaration of Human Rights.

It’s hard to see the Saudi-American alliance continue, especially at this level of mutual commitment, once transitory geopolitical crises abate and current economic priorities shift elsewhere. (Those oceans of oil may be vast, but they’re not infinite.) It’s a familiar pattern in U.S. foreign policy since World War II. The world is littered with the ruins of American-backed dictatorships who suddenly found themselves without weaponers once the Soviet Union fell and their utility passed.

The Saudis and their neighbors understand this. You can see this fear manifest itself in the Kingdom’s own words, pledging to “go at it alone” and to bring “stability” (read: Sunni regional hegemony) to the Middle East by themselves — as if this didn’t mask their fundamental insecurity about the regime’s future.

And you can see it in the United States’ attempts to placate the restless ruling houses that ring the Persian Gulf. Secretary of Defense Chuck Hagel announced on December 7 that the United States will start selling weapons directly to the Gulf Cooperation Council:

Speaking at the Manama Dialouge international security conference here, Hagel encouraged GCC members to create a military alliance and said he’d like to better integrate the US missile defense systems with those of the GCC to enhance collective capabilities.

“We would like to expand our security cooperation with partners in the region by working in a coordinated way with the GCC, including through the sales of U.S. defense articles through the GCC as an organization,” he said. “This is a natural next step in improving U.S.-GCC collaboration, and it will enable the GCC to acquire critical military capabilities, including items for ballistic missile defense, maritime security, and counterterrorism.”

Hagel said the Pentagon “will better integrate with GCC members to enhance missile defense capabilities in the region,” adding “the United States continues to believe that a multilateral approach is the best answer for missile defense.”

The GCC’s purpose is — with apologies to Lord Ismay — to keep the Americans in, the Iranians out, and the reformers down. Successive American governments have sold weapons to the individual GCC member states, first to deter Iraq (to whom Washington once sold weapons) and now to deter Iran (to whom Washington also once sold weapons). Selling weapons to the GCC as a whole is a natural step for U.S. foreign policy in the Middle East.

But, if past is prologue, it’s also a step that could haunt unborn generations of Americans to come.

On Scottish “Independence”

First Minister of Scotland Alex Salmond, in preparation for next September’s independence referendum, released a 670-page white paper last month outlining the course an independent Scotland would take on the world stage. It’s a bold, perhaps overly optimistic document that envisions easy continuity of relations with the European Union, NATO, and the United Kingdom. The Scottish government pitches independence as the nation’s chance to set a different path from its southern neighbor:

Independence means that the decisions about Scotland that are currently taken by governments at Westminster – often by governments that have been rejected by the majority of people in Scotland – will be taken here instead.

This is true, in a way. But this claim sidesteps how much influence over economic, foreign, and defense policy will still be wielded by non-Scottish actors.

Let’s assume Salmond and the SNP get everything they want. By sharing the pound sterling with Westminster, Scotland would be wedding its much of its economic policy to that of a foreign government’s. (Gordon Brown once called the SNP plan “self-imposed colonialism.”) Like the 27 other member states, Scottish foreign policy would be heavily influenced by its role in the European Union. Scottish businesses and industries would still be fully subject to all manner of EU economic and trade regulations. Holyrood would still abide by the rulings of the European Court of Human Rights. Scottish defense policy would be determined largely by its role in NATO. As Scotland’s first prime minister, Salmond may discover in 2015 that he simply swapped Westminster for Brussels and Washington. This can hardly be called independence.

A better solution would be to structurally overhaul the United Kingdom itself. This idea is not new. One hundred years ago, British political discourse was dominated by the question of Irish Home Rule: should Ireland have its own parliament within the United Kingdom? Proponents hoped that a sub-national parliament in Ireland would bridge the gulf between nationalists and unionists. Eventually, Parliament passed the Third Home Rule Bill, only to see it delayed by the start of World War I and eventually scrapped after Irish nationalists rose up in 1916. Modern Scottish independence activists, conscious of the historical symbolism, scheduled the referendum for September 18th, 2014 — one hundred years to the day after the Third Home Rule Bill became law.

Irish Home Rule sought to address systemic flaws in the British system, but others saw the logic behind local parliaments and suggested more extensive reforms. In 1912, Winston Churchill, then First Lord of the Admiralty, proposed what he called “Home Rule All Around” to federalize the United Kingdom:

Another great reason for the settlement of the Irish question in the present Parliament and for disposing of the Home Rule controversy now, while we have the full opportunity presented, is that the ground is thereby cleared for the consideration of claims of self-government for other parts of the United Kingdom besides Ireland.

[...] I spoke of the establishment of a federal system in the United Kingdom, in which Scotland, Ireland, and Wales, and, if necessary, parts of England, could have separate legislative and Parliamentary institutions, enabling them to develop, in their own way, their own life according to their own ideas and needs in the same way as the great and prosperous States of the American Union…

Churchill’s proposal envisioned a United Kingdom divided into between ten and twelve parts, each with their own local parliament for local concerns. Ireland, Scotland, and Wales would each gain a parliament; the other seven to nine would be carved from England, perhaps corresponding to the seven ancient Anglo-Saxon kingdoms known as the Heptarchy. Above them all would be the national parliament in London, which would then be free to focus on national matters.

I am perhaps at an unfortunate age for making a prophecy. I am ceasing to belong to the young men who dream dreams and I have not yet joined the ranks of the old men who see visions; still I will run the risk of prophecy and tell you that the day will most certainly come — many of you will live to see it — when a federal system will be established in these Islands which will give Wales and Scotland the control within proper limits of their own Welsh and Scottish affairs, which will free the Imperial Parliament from the great congestion of business by which it is now pressed, and which will resound and conduce to the contentment and well-being of all our people.

He wasn’t far off. Scotland and Wales gained their own regional legislatures in 1998 under Tony Blair’s Labour government. (Northern Ireland also gained, lost, and regained one in the 20th century, with its current Assembly established by the Good Friday Agreement.) But England, in whole or in part, still lacks a legislature exclusively dedicated to English issues. English issues are instead debated in the British parliament, where Scottish, Welsh, and Northern Irish MPs can vote and debate on them.

The solution to the English question is as simple as it is obvious: a devolved English parliament, separate from the Parliament of the United Kingdom and coequal to its Scottish, Welsh, and Northern Irish counterparts. But looking more broadly, it would reshape the debate over Scottish independence and British sovereignty. No longer would devolution be seen as a stop-gap measure to appease separatists, but rather a genuine and more equitable means of governance.

An independent Scotland would still be inextricably linked and shaped by the United Kingdom, to the European Union, and other forces beyond its control. In many ways, the Union will still exist whether Scotland wants it or not. Why not work instead to make sure it’s a good one?

Bond v. United States and the Treaty Power

Carole Anne Bond sought revenge against her husband’s pregnant mistress as any women in her situation would: by stealing 10-chlorophenoxarsine from the chemical manufacturing company where she worked and purchasing potassium dichromate online. After smearing these highly toxic poisons on the mistress’ car door, mailbox, and front doorknob, Bond was arrested for — of all things — violating the federal Chemical Weapons Convention Implementation Act. Now her case, heard before the Supreme Court today, could change two centuries of American treaty law.

The Constitution places the entirety of foreign policy and international relations to the federal government’s sphere. Central to this is United States’ to sign and ratify treaties, tasks performed by the President and the Senate respectively. Once duly and lawfully ratified, all treaties become part of the “supreme law of the land,” alongside federal statutes and just below the Constitution itself.

In the over 200 years of American foreign policy, the Supreme Court has never struck down a treaty ratified between the United States and foreign powers. In 1936, the Supreme Court held that the Constitution implicitly grants plenary powers in foreign policy to the executive branch. Justice Robert H. Jackson wrote in an opinion eight years later that foreign policy decisions in general are “delicate, complex, and involve large elements of prophecy…They are decisions of a kind for which the Judiciary has neither the aptitude, facilities, nor responsibility, which has long been held to be the in the domain of political power not subject to judicial intrusion or inquiry.”

Reflecting this institutional aversion, the Supreme Court’s treaty case law is spare and occasionally incongruous. The guiding precedent on treaties in this case is Missouri v. Holland, a 1920 case in which Missouri sued a U.S. game warden to halt implementation of the Migratory Bird Treaty Act on Tenth Amendment grounds, The Court then, while not foreclosing constitutional challenges to treaties, nevertheless gave the federal government broad discretion in enforcing them. In Reid v. Covert in 1957, the Court also made explicit what had previously been implicit: that the Constitution is supreme over all treaties ratified by the Senate. Most recently, in Medellin v. Texas, the justices distinguished between self-executing treaties and non-self-executing treaties and ruled that the Vienna Convention was not binding upon state courts without an Act of Congress.

Thus the fundamental question comes before the Court: What constitutional limits exist on the federal government’s power to enforce a lawfully-ratified treaty?

Bond’s counsel, led by Paul Clement, sought a narrower interpretation of the Chemical Weapons Convention Act. Although the Chemical Weapons Convention itself was a valid non-self-executing treaty, argued Clement, the Act that executed it exceeded both the Constitution’s limits on federal police powers and the convention’s intent by criminalizing non-state chemical weapons usage.

The court’s more liberal justices immediately pounced. Justice Kagan asked him where the Constitution constrained the treaty power. Clement cited the Tenth Amendment, which enshrines the principle of federalism by relegating all powers not held by the federal government to the states and to the people. Sotomayor took aim at the impact his position would have on the treaty’s purpose and its role in American foreign policy. “Look at the Syria situation alone. It would be deeply ironic that we have expended so much energy criticizing Syria if this court were now to declare that our joining or creating legislation to implement the treaty was unconstitutional.”

Solicitor General Donald Verrilli, arguing for the government, urged the justices to reject what he described as an “ad hoc ‘too local’ limit on the treaty power [that] can’t be squared with a judgment the Framers made, this Court’s precedent, or consistent historical practices since the time of the Founding.” (On this last point, he and many of the justices repeatedly referred to the repayment of confiscated property to British subjects after the Revolution, an experience which shaped the treaty power’s creation during the Constitutional Convention.) The solicitor general also added that imposing the petitioners’ limit would “compromise foreign affairs and national security interests of the first order.”

Chief Justice Roberts began by pressing Verrilli on what powers the federal government could be granted through the treaty clause. Picking up on a hypothetical first posited by Clement, the chief justice suggested that the international community could draft a multilateral treaty to grant national legislatures the police power to enforce their other treaty obligations. An act of Congress could then give the federal government the power to prosecute purely local crimes. “Any problem with that?” the chief justice asked, somewhat pointedly. Verrelli evaded. “First, I would make the point, Mr. Chief Justice, that it seems unimaginable that a convention of that kind would be ratified by two-thirds of the Senate, which it would have to be.”

Justice Kennedy interrupted. “It also seems unimaginable that you would bring this prosecution!”

Laughter erupted in the courtroom. Roberts returned to his line of questioning by noting that when the Founding Fathers gave the Senate the power to ratify treaties, its members were elected by state legislatures.

Justice Scalia then joined in with his own hypothetical treaty. Laws on marriage, divorce, and adoption, he explained, have long been the near-exclusive domain of state governments. If the Senate ratified a non-self-executing treaty legalizing same-sex marriage, would Congress then be empowered to write federal marriage laws and federal divorce laws? Verrilli challenged Scalia’s question itself. If a self-executing treaty could impose same-sex marriage nationwide, the Solicitor General argued, then so could a non-self-executing treaty.

The justices also took aim at the seemingly-unrelated nature of the crime to the statute’s purpose. “Would it shock you if I told you that a few days ago my wife and I distributed toxic chemicals to a great number of children?” Alito asked the solicitor general. The courtroom burst into laughter. “On Halloween we gave them chocolate bars. Chocolate is poison to dogs, so it’s a toxic chemical…” he continued. “There’s chocolate all over the place,” Breyer noted somewhat mockingly.

Verrilli was stone-faced. “This is serious business,”

Breyer, who seemed open to a narrower ruling along statutory lines, pursued Verrilli on the Implementation Act’s breadth. In addition to the Chemical Weapons Convention, an annex further breaks down the prohibited chemicals into three classifications, or “schedules.” Neither 10-chlorophenoxarsine nor potassium dichromate, the two chemicals Bond used, are listed on the Chemical Weapons Convention’s classifications. This seemingly opened the door to limiting the Implementation Act’s scope, but neither Verrilli nor the more liberal justices walked through. “It’s a puzzle that the treaty could be constitutional, but the implementing legislation that adds nothing is unconstitutional,” noted Justice Ginsburg. Sotomayor likened the act’s language to similarly statutory language for a dangerous weapon. “I don’t think of a car as necessarily a dangerous weapon…It’s only when I’m using it for a prohibited purpose that it turned itself into a dangerous weapon.”

“Could Congress regulate the possession of a gun within a school zone by entering into a treaty that authorizes such legislation?” Alito asked. He referenced United States v. Lopez, a 1995 case in which the Court struck down a federal law banning firearms near schools on the grounds that it exceeded Congress’ Commerce Clause powers. Would the government’s treaty powers enable the President and Senate to circumvent that ruling through an international convention? Verrilli refused to say outright either way. “I think the question in that case would be whether the treaty is a valid exercise of that power.”

Breyer interrupted, pointing out that “…in principle, your position constitutionally would allow the President and the Senate — not the House — to do anything through a treaty that is not specifically within the prohibitions of the rights and protections of the Constitution.” Verrilli again warned against drawing any line by statutory construction, citing “real risks” to American foreign policy. Finally, perhaps sensing his other arguments weren’t working, the solicitor general hammered home the national interest case in his conclusion:

The United States’ leadership in the Chemical Weapons Convention has made a big difference in ensuring that this norm [...] is a norm that the nations of the world have agreed to…It is critically important, and I respectfully submit that the line that the Petitioner is asking this Court to draw is not consistent with the intent of the Framers, with this Court’s precedent, or with the national interests that I have described.

With that, his time ran out.

What conclusions can we draw from today’s arguments? Oral arguments are notoriously unreliable for gauging a case’s final outcome — the health care reform decision illustrated that magnificently — but a distinct majority of the justices seemed unwilling to embrace the government’s absolutist interpretation of the treaty power. With the sharp incongruity between the Chemical Weapon Convention’s purpose and its enforcement in this instance, the Court’s refusal to read the treaty power so broadly here wouldn’t be surprising. Whether the last-minute national security pitch will sway any of the justices seems doubtful, too; Breyer in particular was frustrated the argument hadn’t been made in any of the government’s briefs.

There might be a third alternative here, however. Breyer, Alito, and Scalia were rankled by the Solicitor General’s refusal to entertain the idea that there was “daylight” between the Chemical Weapons Convention and its Implementation Act for them to close. A statutory approach along those lines would allow the Court to make a narrower ruling than one decided on Tenth Amendment grounds. Opening every non-self-enforcing treaty to federalism challenges in the courts would have serious repercussions for the nation’s foreign policy, something that the justices may not be eager to unleash. They already showed great caution by explicitly refusing to let Missouri v. Holland be reassessed here. Perhaps that sobriety will also be reflected in their final ruling. Or perhaps the conservative justices’ hypothetical scenarios of flagrantly-abusive treaties are weighing more heavily on them than we think.

The Special Advocate’s Magic Bullet

Rep. Jim Sensenbrenner and Sen. Patrick Leahy’s new bill, short titled the USA FREEDOM Act, is chock full of interesting changes to federal surveillance laws. (Here’s the full text.) It’s the most significant legislative attempt to reform American intelligence practices since Edward Snowden’s revelations began in June. There’s a lot to parse and analyze in the bill’s text, but one section in particular — Title IX’s creation of a Special Advocate post for the Foreign Intelligence Surveillance Court — might be the magic bullet that civil liberties and privacy advocates have been looking for.

Since its establishment in 1978, the Foreign Intelligence Surveillance Court has written a vast body of secret legal precedents on surveillance laws and the Fourth Amendment. These precedents provide the cursory legal justification for most, if not all, of the NSA’s domestic surveillance programs. Without hope of appeal to higher ordinary courts, not even the U.S. Supreme Court, the FISC’s rulings have gone unchallenged and unreviewed.  (I wrote at greater length about the FISC’s structural problems and the need for appellate review by the Supreme Court earlier this year.) After Snowden’s revelations, the Obama administration created a Tumblr account to shed some light on the FISC’s workings, but no substantive reforms of the FISC’s workings and practices have been made.

The proposed Special Advocate position could change all of that. As currently drafted, the Special Advocate would be a judicial officer independent of the executive and legislative branches. He or she would be appointed to a three-year term by the Chief Justice of the United States, who must choose from among five qualified candidates put forth by the Privacy and CIvil Liberties Oversight Board. Each candidate must, according to the law, “be zealous and effective advocates in defense of civil liberties.”

Once installed and granted a security clearance, the Special Advocate could request to take part in any FISC proceeding, where they must “vigorously advocate…in support of legal interpretations that protect individual privacy and civil liberties.” He or she would be empowered to ask the FISC to reconsider past rulings, participate amici curiae in current cases, and appeal FISC rulings to the rarely-invoked Foreign Intelligence Surveillance Court of Review.

From the Court of Review, the Special Advocate’s most powerful weapon would be available. Section 904(b) of the USA FREEDOM Act would give the Special Advocate the power and standing to bring FISC cases before the Supreme Court:

(1) AUTHORITY. — The Special Advocate may seek a writ of certiorari from the Supreme Court of the United States for review of any decision of the Foreign Intelligence Surveillance Court of Review.
(2) STANDING. — In any proceedings before the Supreme Court of the United States relating to a petition of certiorari filed under [the preceding paragraph] and any proceedings in a matter for which certiorari is granted, the Special Advocate shall have standing as a party.

Legal standing questions have vexed those challenging American surveillance laws for years. When an alliance of civil liberties organizations challenged the constitutionality of Section 702 of the FISA Amendments Act in a 2012 lawsuit against the NSA, the Supreme Court ruled that Amnesty International, the ACLU, and others did not have standing to bring the case before the court because they could not prove imminent injury (i.e., that they were under surveillance), only a “hypothetical future harm.” The catch-22 was immediately obvious: because the government (obviously) does not notify those whom it surveils, nobody could prove imminent injury and therefore no one could mount a valid challenge to the statute. Some organizations have restarted their legal challenges in the wake of Snowden’s revelations, but it will be some time before most of their appeals reach the Supreme Court. (A notable, promising exception is In re Electronic Privacy Information Center, which bypassed the lower courts altogether.)

But the Special Advocate could circumvent that barrier. By explicitly granting automatic standing for certiorari petitions, Congress would open a much-needed appellate pipeline from the FISC system into the ordinary courts of the republic. The Supreme Court exercises full discretion over its docket and need not hear all (or any) of the Special Advocate’s petitions, but given the magnitude of the still-growing NSA scandal and the scope of its constitutional implications, the justices would be hard-pressed to avoid it for long. It is, as Chief Justice Marshall once declared, emphatically the province and duty of the judicial department to say what the law is.

The USA FREEDOM Act isn’t without its potential weaknesses. The Special Advocate’s participation in FISC proceedings, for example, is wholly at the discretion of the presiding FISC judge. Yet, confusingly, the legislation omits any description of the circumstances under which the FISC could or should block a Special Advocate’s participation. If requests to participate are imprudently denied by the court, the Special Advocate’s ability to advocate on behalf of civil liberties could be seriously curtailed. Leaving the discretion to participate to the Special Advocate instead of the court would be one possible fix.

Another potential weakness is the method by which the Special Advocate is appointed. The Privacy and Civil Liberties Oversight Board, which chooses the five candidates from whom the Chief Justice makes the final selection, has enjoyed a brief, dysfunctional existence. Lanny Davis, a noted lobbyist who served on the PCLOB’s first incarnation from 2005 to 2007, openly worried that too much civil liberties oversight in the intelligence community might be a bad thing:

If anything, there were times, including when the Board was “read into” and given complete access to the operation of the Terrorist Surveillance Program that I wondered whether the individuals doing this difficult job on behalf of all of us were not being too careful, too concerned, about going over the privacy and liberties lines — so concerned, with so many internal checks and balances, that they could miss catching or preventing the bad guys from another attack.

Congress dismantled that version of the PCLOB in 2007 and fashioned together a still-toothless new one, although its five seats were not all simultaneously filled until well into Obama’s first term. Such inauspicious origins would not befit a crucial independent voice for civil liberties before the FISC. The Judicial Conference of the United States or some sort of sui generis board, perhaps drawn from a mixture of retired Supreme Court justices and/or other federal judges on senior status, could instead provide the necessary balance of experience and independence for choosing slates of Special Advocate candidates.

Even with these potential flaws, the creation of an independent Special Advocate would be a blockbuster reform for the insular, self-edifying FISC system. By allowing the Supreme Court to review American surveillance laws and the secret legal precedents that guide them, the Special Advocate could pave the way for even greater reforms than could otherwise be achieved through legislation or executive order. The ramifications would be vast. This is the opportunity that privacy and civil liberties advocates have been waiting for.

Happy Einstein Day!

We shape our heroes, and then they shape us. That’s why we have a Martin Luther King, Jr. Day, after all. We want to instill a reverence for racial equality and peaceful, nonviolent protest in both ourselves and in the generations that follow us. It’s a worthy, universal aspiration to create national heroes to venerate and draw inspiration from.

Which is why it’s utterly absurd that we have a day devoted to Italian explorer and indigenous mass murderer Christopher Columbus.

Schoolchildren are taught that Columbus braved the violent North Atlantic seas and heroically landed in the New World, opening up the vast lands for European colonization. From that was born the United States of America, the greatest country in human history and the last best hope for democracy on Earth. Worth celebrating, right?

But most teachers usually leave out Columbus’ darker aspects. Under his rule of Hispaniola as colonial governor, Columbus’ policies killed thousands of indigenous peoples and enslaved many more with impunity. His actions set the precedent for brutal Spanish colonial rule that would guide European colonization of the New World for generations to come — with implications that would last well into the present day.

As if this weren’t enough, Columbus didn’t even really discover America; you can’t “discover” something if millions of people already live there. Nor was he the first European to set foot in the New World! That honor goes to Scandinavian explorer Leif Eriksson, who helped settle a Viking colony in the New World in the 11th century. It’s like celebrating Buzz Aldrin for being the first man on the Moon while simultaneously ignoring Aldrin’s legacy of slaughtering and enslaving the native lunar inhabitants.

It’s clear to me that we need a new mid-October holiday, so I set about scanning the historical record. My first impulse was to celebrate John Brown’s raid on Harper’s Ferry, which began on October 16th, but I tabled that one after realizing his birthday would be preferable (which, unfortunately, isn’t in October). Fortunately, a far better option soon presented itself, one that preserves a celebration of immigration without glorifying the horrors of colonial oppression.

Picture it: Princeton, New Jersey. The date: October 17th, 1933. As Adolf Hitler takes power in Nazi Germany, a man flees the hatred and persecution now coursing through the Old World’s veins and takes refuge in the New. His generation is replete with brilliant scientific minds, but in both scientific discovery and raw intellect, he already towers as far above them as they tower above a kindergartner. In six years, he would write a letter alerting Franklin D. Roosevelt to the Nazi atomic bomb program; in eleven years, he would call for the abolition of nuclear weapons and become a symbol of peaceful scientific progress for the benefit of all humanity.

He is Albert Einstein, the greatest scientist of our age.  He changed our understanding of the universe just by thinking about it. He lent his global fame to the fight for African-American civil rights in the age of segregation and lynching. He advocated for world peace as a tangible goal instead of just an abstract ideal. Einstein symbolizes everything America could be and should be and must be: a refuge for the oppressed and the exiled, a beacon for freedom and justice, and a vibrant center of human and scientific achievement.

So happy Albert Einstein Day, everyone! Thank you to all the immigrants who have made America great!