The Case for a FISA 'Special Advocate'

Abstract

If one point of consensus has emerged in response to the disclosures of various U.S. foreign intelligence surveillance activities by former NSA contractor Edward Snowden, it is that Snowden’s disclosures have prompted a hitherto unimaginable public debate over the proper scope of the government’s surveillance authorities — and the efficacy of the largely secret oversight and accountability mechanisms Congress has designed and provided to oversee them. And although reasonable minds continue to differ as to the necessity for — and desirability of — specific reforms, one of the more common themes of these discussions has been the possibility of creating some kind of “special advocate,” a security-cleared lawyer or group of lawyers to argue against the government in adversarial proceedings before the Foreign Intelligence Surveillance Court (FISC) — the body charged with overseeing government surveillance undertaken pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA).

In the symposium article that follows, I aim to situate these proposals against their historical and constitutional backdrop. As this article explains, when the evolution of FISA and the FISC are properly understood, the importance of meaningful adversarial participation in at least some cases becomes manifest — not just in the abstract, but in a specific and carefully circumscribed form not currently reflected in any one reform proposal. Borrowing themes from several of the competing approaches, this article explains why the constitutional and prudential objections to such legislation that have been raised elsewhere can largely — if not entirely — be ameliorated through careful legislative drafting. And although the creation of a special advocate may not be a sufficient congressional response to the Snowden disclosures, we should at least have common cause that it is a necessary step, regardless of what other reforms, if any, Congress ultimately embraces.

Keywords: FISA, surveillance, special advocate, Snowden, NSA, wiretapping, Fourth Amendment, FISC, Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court