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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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.