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.

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