Constitution Check: A privacy advocate at the secret spying court?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at a proposed change to the secret Foreign Intelligence Surveillance Court that would allow adversarial opinions in certain situations.

THE STATEMENTS AT ISSUE:

“The newly introduced USA Freedom Act includes reforms to the Foreign Intelligence Surveillance Court, the secret court that approves National Security Agency surveillance requests….Five special advocates will be appointed by the court and will be called upon whenever the court is considering a novel or significant construction of law.   The amicus is meant to advocate for the protection of civil liberties and privacy, educate the court on intelligence collection or communications technologies, and answer any questions the court may have…The one-sided court will no longer only hear from the government.”

– Excerpt from an analysis by the Electronic Frontier Foundation, a digital age privacy advocacy group, of the legislation now moving through Congress on changes to the existing system of a secret court’s role in authorizing the government’s massive intelligence-gathering network through electronic eavesdropping and data sweeps.

“The presiding judges [of the Foreign Intelligence Surveillance Court and its companion appeals court] shall, not later than 180 days after the enactment of [this bill], jointly designate not fewer than five individuals to be eligible to serve as amicus curiae, who shall serve pursuant to rules the presiding judges may establish….Such amicus curiae is to assist such court in the consideration of any application for a [surveillance] order or review that, in the opinion of the court, presents a novel or significant interpretation of the law…Individuals designated as amicus curiae shall be persons who possess expertise in privacy and civil liberties, intelligence collection, communications technology, or any other area that may lend legal or technical expertise to the court.”

– Excerpt from the bill, H.R. 2048, called the USA Freedom Act, recently approved by the House Judiciary Committee with bipartisan support. The measure is considered to have a good chance of passage by Congress.

WE CHECKED THE CONSTITUTION, AND…

One of the longest-running traditions in American law, deeply embedded in several parts of the Constitution and with ancient roots in English legal history, is the idea that law works best in an “adversary system.” That means that two sides, each with competent lawyers, will work diligently and within proper legal bounds to promote their side of a legal controversy and, at the end of this open and healthy combat, will result in just outcomes.

There is a bit of idealistic aspiration about the virtues of this system, but it has, on the whole, worked well for generations and even centuries.

With an impartial judge or jury making the final call in such a contest, even the loser, supposedly, can rest assured that its side had a fair chance, its “day in court.” Thus, the outcomes are likely to be widely accepted and perhaps even broadly respected.   The Constitution seeks to assure such results through the right to a jury and to a lawyer, the right to a public trial, and the requirement that – in the national courts – no case may proceed at all unless it involves an actual “case or controversy,” meaning adversaries pursuing conflicting interests.

For the past 37 years, there has existed one federal court that has not been required to use the adversary system, and that has long been a source of criticism. It is the Foreign Intelligence Surveillance Court, which meets in absolute secrecy, until very recently never published any of its decisions or orders, and – most importantly – made its rulings after listening to only one side: the federal government, seeking permission to conduct widespread electronic surveillance in search of intelligence about threats to U.S. national security.

The record of that court is, simply, that it very seldom has said no to such a request by the government. And, as the revelations of former spying agency analyst Edward Snowden have shown, that court was a full partner in a steadily expanding, global campaign of secret electronic communications-monitoring, not only involving those who might pose threats to security, but also ordinary Americans. A penetrating invasion of individual privacy has been the predictable result.

With the Snowden revelations creating a new public sensitivity about this invasion, there has been rising interest in changing the operation – and the culture – of the secret court, to make it more public and more accountable. One of the innovations most often mentioned was to turn that court into a court operating on the adversary system.

Instead of considering only what the federal government wants, in surveillance approval, the court would also hear from an independent source – sometimes called a “public counsel,” and, in the most recent version, an “amicus curiae” (the Latin phrase for friend-of-the-court). New legislation starting to work its way through Congress uses the amicus curiae approach.

The Supreme Court and lower federal courts have often heard from amicus curaie, in addition to the two sides in a normal adversary contest, to provide additional perspective and legal learning in the proceedings. Most of the time, these “amici” do not actually take part in court hearings, but file written briefs to help educate the court in ways that may go beyond what the two opposing sides have offered.

As the current bill in Congress would approach something like an adversary system in the Foreign Intelligence Surveillance Court, the amicus would not be, in all respects, a truly independent adversary. The measure as now written leaves it up to the judges to decide when to call in such an adviser, and thus there would not routinely be an adversary available to oppose government requests for surveillance orders.   The chief judges of the secret court would also specific just how the amicus would function, and would have the option of declining to use an amicus curiae at all.

It may be that this could approach something like a true adversary proceeding before the secret court, but it could not fully assure that the contest would be an equal one in the traditional way.

Even with some limitations, however, this would be a significant departure from the history of the secret court’s operations since it was created in 1978, and may well have potential for assuring somewhat greater privacy protection for Americans who otherwise might get caught routinely in an electronic dragnet. And it could create the public impression that the operation of such a dragnet would not be left entirely to government choice.