Constitution Daily

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Constitution Check: Would a “public advocate” on spying be unconstitutional?

January 21, 2014 by Lyle Denniston


Lyle Denniston looks at the constitutional uncertainty over President Obama's request for a panel of advocates to appear in front of a secret government court that approves NSA requests to spy on Americans and others.


“To ensure that the Foreign Intelligence Surveillance Court hears a broader range of privacy perspectives, the President called on Congress to authorize the establishment of a panel of advocates from outside the government to provide an independent voice in significant cases before the Court.”

—White House fact sheet issued January 17, explaining one of the proposals President Obama made to ensure that privacy risks of secret telephone data monitoring are considered by the special federal court that issues orders permitting that surveillance.

“Establishing a Public Interest Advocate….As both technology and the law have evolved over time, the Foreign Intelligence Surveillance Court is sometimes presented with novel and complex issues of law.   The resolution of such issues would benefit from an adversary proceeding….We recommend that Congress should create a Public Interest Advocate who would have the authority to intervene in matters that raise such issues.”

 – Excerpt from the December 12 report of the President’s Review Group on Intelligence and Communications Technologies.  The report is titled, Liberty and Security in a Changing World.

“The participation of a privacy advocate is unnecessary and could prove counter-productive in the vast majority of Foreign Intelligence Surveillance Act matters….The participation of an advocate would neither create a truly adversarial process nor constructively assist the courts in assessing the facts….At an institutional level, there are difficult policy, and potentially constitutional questions regarding how an advocate would fit within existing governmental structures.”

 – Report to Congress by the Federal Judiciary on January 13, reacting to the proposal of the President’s Review Group.

“The concept of a public advocate is a novel one for the American legal system, and, consequently the proposal raises several difficult questions of constitutional law….Article III of the Constitution, which vests the judicial power of the United States in courts of law over certain ‘cases’ or ‘controversies,’ may restrict the role of a public advocate…It is at the very least doubtful that a public advocate has either personally suffered a constitutionally sufficient injury or been properly authorized by an entity that has suffered a constitutionally sufficient injury.  Moreover, Article III generally prevents the government from litigating against itself.”

 – Three legislative attorneys on the staff of the Congressional Research Service – the legal advisory arm of Congress -- in a report on October 25 discussing legal issues arising over a public advocate having a role before the special intelligence court.


If Congress takes seriously the idea that there needs to be an advocate of privacy, trying to protect the public from the intrusion of the government’s massive sweep of telephone data in search of terrorists, it will not find a ready answer in the Constitution on the legality of such a move.   And, it appears, Congress will also run directly into significant opposition from within the federal courts themselves, whose leaders see no real need for such an office.

It is already clear, soon after President Obama’s speech last week outlining changes he wants made in the government’s overall electronic spying program, that constitutional issues will influence whether to move forward with the proposal for a public advocate.

With the special FISC tribunal approving secret government requests for surveillance orders 99 percent of the time, many critics of the existing system seem persuaded that the privacy of Americans is being seriously undermined, and that in fact, the special court pays little attention to that question.  The vast sweep of what the court has approved, reaching virtually every American, and the added fact that the special court hears only one side – the government’s – are cited as evidence that the court needs some outside help.

While the structure of the federal government that the Constitution has established has a good deal of flexibility in it, the reality is that the structure does not yield easily to novel experiments.  That is especially true with the structure of the courts mandated by Article III: They are not policy-making institutions, but only tribunals to decide explicit legal controversies.

It is instructive to recall other debates over constitutional structure – for example, the controversy lasting debates and still not comfortably settled about whether the large array of independent government regulatory agencies is a deviation from what the Constitution specified.  Some of that same constitutional skepticism, it may be recalled, surrounded the use of independent special prosecutors to look into major government scandals.   The Supreme Court, over the years, has been quite busy policing the outer boundaries of institutional experiments that the Constitution will tolerate.

Against this background, the idea of introducing a non-government advocate into the process of issuing secret orders to allow the government to engage in global electronic eavesdropping is generating a new level of this same kind of constitutional uncertainty.  Where in the Constitution would one look to find authority for an outsider to shape the breadth of eavesdropping power, and to whom would that outsider be accountable?  Who decides when that advocate can get involved, and what the effect of that office’s advocacy should be?  Could that advocate be removed if he or she mucked up the process of reviewing eavesdropping requests?

Perhaps the most significant question – and this may well be a political issue as well as a constitutional question – is whether the advocate would really have enough clout to make a difference in shielding Americans’ privacy.

As the Congressional Research Service attorneys who closely studied the idea from a constitutional perspective said in summing up their report: “While there are no clear answers that exist to the novel questions raised by the establishment of an office for a public advocate, generally the more modest and confined the role of the advocate is in a given proposal, the more likely that proposal, if made into law, would withstand constitutional scrutiny.”

That is, constitutionally speaking, would it be worth the effort?

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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