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How to Reform the Foreign Intelligence Surveillance Court Without Creating a Special Advocate

By   /  March 11, 2015  /  Comments Off on How to Reform the Foreign Intelligence Surveillance Court Without Creating a Special Advocate

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Many proposals have been introduced in Congress to reform the Foreign Intelligence Surveillance Court (FISC); several proposals would create an ombudsman-like entity that would appear before the FISC and the Foreign Intelligence Surveillance Court of Review (FISC-R) on behalf of the American people to argue against the government’s compulsion requests. [1]. As the Congressional Research Service (CRS) pointed out, this “concept…is a novel one…and, consequently the proposal raises several difficult questions of constitutional law.” [2]. One way around those difficult questions is to remove the government from the opposition-side of the proposal entirely.

CRS explained in its report how the appointment of an advocate to appear before the FISC and FISC-R faces complex constitutional issues regarding Article II’s Appointments Clause and Article III’s restrictions on the judicial branch. [3]. It explained that the special advocate proposals raise problems because they do not require Senatorial confirmation, could result in intra-branch litigation, and would lack standing to appear before the courts. [4].

Instead, why not expand the existing mechanisms through which the communications service providers are already fervently—but unsuccessfully—opposing FISA compulsion orders? Currently, service providers can oppose the government’s requests before the FISC by filing a petition. [5]. 50 U.S.C. §1830 authorizes a service provider to request a hearing, but the hearing is only granted if a majority of the judges determine it is necessary to maintain uniformity of the court’s decisions or if the proceeding involves a question of exceptional importance. [6].

First, expanding the existing mechanisms instead of creating a new entity tackles the three issues raised by CRS. Appointments and intra-branch litigation are solved because the service providers are not government entities. Standing is solved because FISC and FISC-R have repeatedly held service providers have standing when petitioning to vacate an order. [7]. Service providers are incentivized and motivated to oppose broad and vague compulsion orders. The companies just need a less-burdensome mechanism to mount the defense on behalf of their consumers: the American people.

Second, while existing mechanisms are a start, they clearly have not provided an effective adversarial opponent for the government. As mentioned, Section 1803 sets a broad—yet seemingly high—bar for a petitioner to even receive a hearing (a question of exceptional importance). The opportunity to present oral arguments does already exist, as demonstrated in Yahoo!’s (government-approved) release of documents summarizing a multi-year Section 702 opposition effort (which included mention of oral arguments before the FISC-R). [8]

But, other examples of a success—even as nominal as even receiving a hearing before FISC or FISC-R—are few and far between. Considering the magnitude and implications now known about the extent of the surveillance programs, an easy reform could be to mandate a hearing for any opposing-petition deemed non-frivolous (as opposed to creating a secondary hurdle with the higher bar of an exceptionally important question to receive a hearing).

The counter to this proposal of a streamlined hearing is about resources and timeliness. Compulsion orders can be time-sensitive and the statutes lay out specific time frames for petitions and appeals to be considered. [9]. Creating a mechanism for a timely in-person hearing could be difficult, but the difficulty would be the same for any proposal for an ombudsman-like advocate. But even more, considering the constitutional rights and national security implications at stake, U.S. taxpayers should be willing to provide whatever judicial resources are needed to create this expedited hearing. And regarding timeliness: if a hearing is impossible in a short time frame for an emergency order, the order can always be subject to review in a subsequent hearing once the service provider has had requisite time to mount its case.

Third, the need to provide a real and substantial “check” on the government’s claims in compulsion requests is clear. Currently, an opposing petitions can only succeed if it proves that the compulsion order does not meet the requirements of either sections 215 or 702 or is otherwise unlawful. [10]. While many petitions challenging the constitutionality of directives have thus far failed, the FISC has acted to minimize and modify directives. Most famously, the October 2011 FISC opinion in which Judge John D. Bates found “certain aspects of NSA’s collection under Section 702 to be ‘deficient on statutory and constitutional grounds.’” [11].

In that case, the FISC’s attention to NSA’s excesses only occurred after the government filed a clarification disclosure–which then led to five months of litigation between the government and the court over the disclosed violations. [12]. Unquestionably, this process could have been aided had the government been required to face adversarial counsel both in the initial order and during the review. Judge Bates’ frustration that the government’s initial error was a “substantial misrepresentation” is an observance that screams for an adversarial process. [13]. The service provider in that case (unknown from the redacted opinion and unclear whether it attempted to participate) was likely in a better position to explain the misrepresentations to the FISC than any other party—especially considering the FISC failed to catch the misrepresentation until the government admitted it after-the-fact.

Reforming Sections 1881(h)(4) and 1861(f)(2)(A)(ii) to provide stronger mechanisms for service providers to oppose FISC orders could be an easier way to create an effective adversarial opponent for the government in NSA surveillance orders. Service providers are motivated to protect their customers and have demonstrated over the past decade that they are willing to spend their own resources to defend the constitutional rights of their customers. Reforming the FISA statute to provide them a mandatory hearing on non-frivolous petitions, the ability to more effectively challenge government claims about the scope of surveillance needed, and the opportunity to inform the FISC with their technical expertise about their own systems—both before and after directives have been ordered—could improve the system for all involved without invoking the complications of creating a new and novel judicial entity.

 

Photo courtesy of Benjamin Cook

[1]  S. 1467, 113th Cong. (1st Sess. 2013); H.R. 2849, 113th Cong. (1st Sess. 2013); S.1551, 113th Cong. (1st Sess. 2013); H.R. 3159, 113th Cong. (1st Sess. 2013); H.R. 3228, 113th Cong. (1st. Sess. 2013).

[2] Andrew Nolan, et al., Cong. Research Serv., 443260, Introducing a Public Advocate into the Foreign Intelligence Surveillance Act’s Courts: Select Legal Issues (2013).

[3] Id.

[4] Id.

[5] 50 U.S.C. 1803(a)(2)(A)(authorizing hearings for petitions under §1861 or §1881); 50 U.S.C. §1861(f)(2)(A)(i)(opposing Section 215 orders); 50 U.S.C. §1881(h)(4)(opposing Section 702 orders).

[6] 50 U.S.C. §1803(2)(A).

[7] In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, No. BR 14-01, 2014 WL 5463097, at *1, *3 (FISA Ct. Mar. 20, 2014); In re Directives to Yahoo! Inc. Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, No. 08-01, (FISA Ct. Rev. August 22, 2008)(only released on Yahoo!’s website).

[9] §1861(f)(2)(A)(ii) (72 hours to do initial review of petition); 1881(h)(4)(B-D)(petition assigned within 24 hours, initial review within 5 days after assigned).

[10] §1861(f)(2)(B); §1881(h)(4)(C)


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