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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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.

A Salute to Texan Honesty

Some Section 4 states barely waited for the ink to dry on Shelby County v. Holder before launching an all-out attack on voting rights no longer protected by federal preclearance.

North Carolina fired the first salvo by slashing early voting hours, banning same-day voter registration, forbidding college students to register in their university’s precinct, and throwing up nearly-insurmountable barriers for ex-felons to re-enfranchise themselves. Texas proposed a new voter ID bill within hours of the Court’s decision and implemented it shortly thereafter. Florida even announced today that it would resume its widely-condemned purge of voter rolls.

Amidst this assault, something remarkable happened on Monday in a federal district court in Texas. There, the U.S. Department of Justice is attempting to force that state into compliance with Section 5’s preclearance clause by “bailing in” the jurisdiction under Section 3(c) of the Voting Rights Act of 1965, which places sub-federal jurisdictions under Section 5’s preclearance requirement without invoking the now-defunct Section 4. U.S. attorney general Eric Holder’s end run around Section 4’s demise is unlikely to succeed, but it did lead to a fascinating assertion by the state of Texas in its submission to the court. At issue is whether Texas’ original 2011 congressional redistricting map, which had been rejected by federal courts, can be used to “bail in” the state under Section 3(c). The Department of Justice argues that the map, which heavily diluted urban and Hispanic voters, is clear evidence of racial discrimination.

Not so, said the state of Texas. With no small amount of chutzpah, Texas declared in open court that the 2011 congressional redistricting map cannot be used to invoke Section 3(c) because it was designed to discriminate against Democrats, not racial minorities:

DOJ’s accusations of racial discrimination are baseless. In 2011, both houses of the Texas Legislature were controlled by large Republican majorities, and their redistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats. It is perfectly constitutional for a Republican-controlled legislature to make partisan districting decisions, even if there are incidental effects on minority voters who support Democratic candidates. See Hunt v. Cromartie, 526 U.S. 541, 551 (1999) (“[A] jurisdiction may engage in constitutional political gerrymandering, even if it so happens that the most loyal Democrats happen to be black Democrats and even if the State were conscious of that fact.”); League of United Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 854 (5th Cir. 1993) (en banc) (“[Section 2 of the Voting Rights Act] is implicated only where Democrats lose because they are black, not where blacks lose because they are Democrats.”). The redistricting decisions of which DOJ complains were motivated by partisan rather than racial considerations, and the plaintiffs and DOJ have zero evidence to prove the contrary.

Honestly like this is sadly rare among public officials these days. State attorney general and future GOP gubernatorial candidate Greg Abbott should be commended for his candid approach to representing the people of Texas in federal court.

Well, some of the people of Texas, at least.