By Kyle C. Barry
AFJ Legislative Counsel
Last week, the House passed the first surveillance reform legislation since Edward Snowden’s disclosures about several NSA surveillance programs, including the bulk collection of Americans’ phone call data. Unfortunately, the legislation does not sufficiently address the FISA Court—the secret court that issues orders authorizing government surveillance—and omits key procedural safeguards designed to ensure that the court considers privacy interests before granting government requests to conduct surveillance.
The House passed a compromise version of the USA Freedom Act that is substantially diluted from what Rep. Jim Sensenbrenner, R-Wis., and Senator Patrick Leahy, D-Vt., originally introduced. Many privacy advocates, along with major media outlets like The New York Times, have criticized the bill’s failure to go far enough in its substantive reforms of what sort of information the NSA is allowed to obtain, particularly with respect to the bulk collection of telephone records . But another problem has drawn less attention: As passed, the bill leaves intact the ex parte nature of the FISA Court and, with it, the government’s tremendous advantage in obtaining surveillance orders.
As AFJ argued in its report, Justice in the Surveillance State, establishing an adversarial process in the FISA Court is an essential part of any surveillance reform. Currently, the FISA Court only hears from the government, making it an aberration in a federal judiciary that generally relies on the presentation of competing views to adjudicate questions of law. It is true that certain aspects of criminal investigations, like search warrants and wiretaps, are approved through ex parte proceedings, but the scope of FISA Court decisionmaking goes much further. While search warrants turn on narrow questions of fact—i.e., has the investigating officer demonstrated probable cause—the FISA Court’s decisions include sometimes controversial interpretations of statutory and constitutional law, which are the very sort of questions for which the adversarial process is most critical.
To address this problem, the USA Freedom Act originally proposed the “Office of the Special Advocate.” The special advocate could ask to participate in any proceeding before the FISA Court, and would “vigorously advocate . . . in support of legal interpretations that protect individual privacy and civil liberties.” The special advocate could also ask for the review of any FISA Court decision, and would have standing to appeal decisions to both the FISA Review Court and, subsequently, the United States Supreme Court. This proposal would ensure not just that the FISA Court would hear from lawyers outside the executive branch, but that, with respect to each individual application, the court would hear the best arguments on the side of privacy and civil liberties.
But the compromise version omits the special advocate, and replaces it with an “Amicus Curiae” panel. The panel would consist of five lawyers eligible to serve as amicus (or “friend of the court”) in FISA Court proceedings, and the court would appoint a panel member “to assist . . . in the consideration of any application for an order or review that, in the opinion of the court, presents a novel or significant interpretation of the law[.]” Even in such cases, however, the court could avoid appointing amicus with “a written finding that such appointment is not appropriate.”
This half-hearted attempt to solve the ex parte problem is inadequate for three reasons. First, it leaves the FISA Court with almost complete discretion to ignore the amicus panel. While the bill’s text creates a rebuttable presumption in favor of appointing amicus in difficult cases, it is a presumption too easily sidestepped. The questions of whether the presumption applies in the first place, and, if it does, whether it is rebutted, are left to the unreviewable discretion of the court. Should the court wish to proceed without further input, it need only find that an application does not involve “a novel or significant” question of law, or that, for any other reason, “appointment is not appropriate.” This deference is particularly troubling because the FISA Court already has the authority to appoint amicus curiae in appropriate cases, so this “reform” is in reality little more than the status quo in different language.
Second, this proposal provides no additional mechanism to appeal FISA Court decisions. Once the court renders its decision the role of amicus is over, and the amicus is not empowered to ask for review or appeal. This is no trivial matter—because only the government appears before the FISA Court, and because the government almost never loses, appeals of FISA Court decisions are virtually nonexistent.
Third, and perhaps most importantly, the amicus is not adverse to the government, and is not charged with advocating for those whose privacy interests might be at stake in a FISA Court proceeding. Thus, while an amicus may provide an additional voice, it is a neutral one, and will not necessarily provide the sort of competing viewpoint on which the adversarial process depends.
This shift was foreshadowed in January when, instead of agreeing with an independent Review Group report that called for a “public advocate,” President Obama asked for Congress to establish “a panel of advocates from outside government to provide an independent voice in significant cases.” Now we have the unfortunate result of that request, which the Administration supports. Moving forward, the Senate should restore the special advocate in the USA Freedom Act, and pass reform legislation that meaningfully protects the privacy rights of all Americans.