Introducing a Public Advocate into the Foreign Intelligence Surveillance Act's Courts: Select Legal Issues [October 25, 2013] [open pdf - 772KB]
"Recent revelations about the size and scope of government foreign surveillance efforts have prompted some to criticize the level of scrutiny that the courts - established under the Foreign Intelligence Surveillance Act of 1978 (FISA) - currently provide with respect to the government's applications to engage in such surveillance. In response to concerns that the 'ex parte' nature of legal positions, some have proposed establishing an office led by an attorney or 'public advocate' who would represent the civil liberties interests of the general public and oppose the government's applications for foreign surveillance. 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. […] Other constitutional questions are prompted by FISA public advocate proposals. For example, separation of powers concerns that no branch should aggrandize itself at the expense of a co-equal branch may also prevent a public advocate from being housed within the judicial branch. Likewise, Article III of the Constitution may present an obstacle to efforts that would make appeals of FISA court decisions more frequent. This report will explore all of these difficult constitutional issues prompted by the idea of including a new adversary in FISA court proceedings."
CRS Report for Congress, R43260