Secret spy court gets first outside adviser

The secretive federal court overseeing U.S. spying activities appointed its first outside adviser last week, months after Congress passed intelligence reform that attempted to open up the court.

Preston Burton, a criminal defense lawyer who has represented Monica Lewinsky, as well as the so-called “D.C. Madam” and accused spies, got the approval to serve as a friend of the court to the Foreign Intelligence Surveillance Court (FISC), it said in a filing released on Thursday.

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The distinction makes Burton the first of at least five outside advocates who will be tasked with providing expert advice to the court, which had previously only heard arguments from the government.

Under the law, Burton will be tasked with assisting in a case that “presents a novel or significant interpretation of the law,” unless the court says it does not need him.

Some civil liberties advocates had fought for a more aggressive role for the friend of the court, but they were ultimately forced to settle with a somewhat more limited position.

Still, the new expert voices represent a shakeup for the court, whose secrecy has long been a target of civil libertarians.

The changes were made as part of a much broader intelligence reform bill called the USA Freedom Act, which ended the National Security Agency’s (NSA) bulk collection of millions of Americans’ phone records and established new transparency measures for tech companies that give their data to the government. The bill — passed early this summer — came after two years of congressional wrangling in the wake of Edward Snowden’s revelations about the agency and served as Congress’s first major limitations on intelligence agencies in years.

The first question before Burton is whether the Obama administration should be able to retain the phone records purely for technical purposes and to comply with ongoing lawsuits after the NSA program formally ends in November. The government asked for permission to retain the records in August, but the court has yet to make a determination.

Former Virginia Attorney General Ken Cuccinelli had previously offered himself as a candidate to provide the outside advice, though the court had not taken him up on the offer. 

The FISC filing was first reported by The Intercept.