Special advocate at FISA court would pass Constitutional muster

It has been more than 15 months since the former NSA contractor Edward Snowden began leaking classified documents containing details about far-reaching government surveillance programs, including the bulk collection of call detail records from nearly every phone carrier in the U.S. 

Many of these programs had been approved by the secret Foreign Intelligence Surveillance Court (the “FISC”).  These revelations led to heated public debate about how to protect privacy and civil liberties while keeping Americans safe in a time of rapid technological advancement and evolving threats around the world. After more than a year of discussion and efforts to forge a compromise between the intelligence community, privacy groups, telecommunications companies, and both sides of the aisle, Congress has the opportunity to pass meaningful surveillance reform.

The Senate version of the USA FREEDOM Act would not only rein in certain bulk collection authorities, but would also reform certain procedures of the FISC to ensure greater oversight of such surveillance. Despite some fears to the contrary, the FISC reforms do not raise new constitutional issues. The function of the FISC is to rule on applications from the executive branch to conduct electronic surveillance and other forms of information gathering for foreign intelligence purposes. These proceedings are, for obvious reasons, usually conducted ex parte and in secret. USA FREEDOM would reform the FISC process in several ways to achieve greater accountability, transparency, and to improve privacy protections.

One such reform would adjust the proceedings so that the FISC must hear from a “special advocate” charged with advancing individual privacy and civil liberties when appropriate. As a “friend of the court” rather than a party, the special advocate’s role would be to assist the court in considering the very small percentage of government applications that present novel or significant interpretations of the law. The FISC, or its reviewing court (the FISCR), would decide whether a particular application presents such novel questions that appointing a special advocate would be appropriate. In addition to this wide discretion, the courts also have the power, and duty, to interpret these provisions in a manner that is consistent with the Constitution.

Yet some have claimed that requiring the FISC to hear from a special advocate in this narrow class of proceedings would raise constitutional concerns under the “case or controversy” requirement of Article III. As a general matter, our federal courts may only decide live cases or controversies between adverse parties with standing to litigate the case. The proceedings before the FISC, however, do not involve adverse parties yet have long been considered analogous to the historical role that our courts have played in issuing warrants. Our courts have repeatedly upheld such proceedings, including those conducted by the FISC, as consistent with Article III. Allowing the FISC to hear from an additional attorney during the process does not create a new Article III question. Any concerns stem from the nature of the FISC process itself, not from the participation of a special advocate tasked with promoting privacy and civil liberties. If anything, the participation of a special advocate increases the adverseness of the proceedings and helps ensure compliance with Article III.

In addition, the bill does not improperly confer “standing” on the special advocate. The case or controversy component of Article III requires that only parties with a concrete and particularized injury may be afforded standing to sue. Here, however, the bill does not elevate the special advocate to a party with standing who has a right to be heard by the court. To the contrary, the court need only hear from the special advocate as a friend of the court and only where the court itself decides that the participation of a special advocate is appropriate. Also unlike a party with a right to be heard, the special advocate has no right to appeal the decisions of the FISC or FISCR. Rather, the FISC must certify questions of law that it determines warrant review to the FISCR. In turn, the FISCR may certify questions of law to the Supreme Court. Our federal district courts and courts of appeal already have such authority under existing law. This bill extends this certificate authority to the FISC and FISCR to encourage increased appellate review of surveillance orders.

Ultimately, what have been framed as constitutional concerns with the current provisions of the USA FREEDOM Act are in fact policy preferences that should not be used at this late stage to stall reform, or to undermine the hard-won compromises reflected in the bill.

Wallace is a Georgetown University law professor who has taught courses on “Conservatism in Law in America” and is a member of The Constitution Project’s bipartisan Liberty and Security Committee.