Meaningful Surveillance Reform Requires Creation of Special Advocate, TCP Experts Say

A bipartisan group of national security and foreign intelligence experts is urging members of the House of Representatives to create a special advocate to protect the public’s rights before the Foreign Intelligence Surveillance Court (FISC) when Congress debates the USA FREEDOM Act later this week.

In a letter sent to House members on May 20, members of TCP’s Liberty and Security Committee called on Congress to create “meaningful adversarial participation” before the FISC, including a security-cleared special advocate with a mandate to represent the public’s privacy and civil liberties interests whenever the government seeks broad surveillance authority beyond individualized targets.  In addition, there needs to be a meaningful appellate process to review FISC decisions that adversely affect constitutional rights.

The version of the legislation currently before the House, an amendment to the original bill (H.R. 3661) negotiated among a handful of legislators, instead creates a pool of private lawyers to appear as amici curiae when appointed by the FISC, but provides an unreviewable means for FISC judges to sidestep that requirement simply by asserting that such an appointment is unnecessary.

The signers of the letter argue such an approach is inadequate and fails to provide the public much protection beyond procedures currently in place. Instead they suggest that any effort by Congress to provide for more meaningful adversarial participation before the FISC should incorporate the following three principles:

  • The special advocate must have an unconditional right to participate any case in which the FISC is asked to approve non-individual surveillance authorizations, including, inter alia, production orders under section 215 of the USA PATRIOT Act and directives under section 702 of the FISA Amendments Act.
  • The special advocate should be empowered to represent U.S. persons who are subject to the surveillance orders at issue, specifically invested with the authority to litigate on behalf of those U.S. persons who could be subject to the surveillance authorization at issue.
  • Cases in which the special advocate participates should be “certified” to the Foreign Intelligence Surveillance Court of Review to ensure meaningful appellate review.

They called the creation of a special advocate adhering to these principles “a necessary—but not necessarily sufficient—element of any surveillance reform.”

The importance of having a special advocate representing the public’s interests before the FISC became apparent a year ago when documents disclosed by Edward Snowden revealed that National Security Agency programs approved by the court had allowed the spy agency to collect information on millions of Americans.

UPDATE:  On May 29 , TCP’s Liberty and Security Committee released a report detailing its proposal for a special advocate.  The Hill quoted TCP’s president, Virginia Sloan, as saying, “”The public deserves a full, independent voice before the court whenever it considers surveillance programs that might jeopardize fundamental rights to privacy.”

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