Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate [March 21, 2014] [open pdf - 640KB]
"Recent controversies over the nature of the government's foreign surveillance activity have prompted some to argue that the judiciary's review of government surveillance requests under the Foreign Intelligence Surveillance Act of 1978 (FISA) should be far more exacting. Accordingly, some have proposed transforming proceedings before the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review, courts created pursuant to Article III of the Constitution, into a far more adversarial process where a designated attorney or 'public advocate' actively argues in opposition of some or all of the government's foreign surveillance requests. The concept of incorporating a public advocate into FISA proceedings is a novel one, as '[p]ublic [a]dvocates do not have any identical comparators in the American legal system.' The few analogues to the FISA public advocate proposals that do exist in American law appear in contexts far removed from the typical FISA proceedings, such as an administrative agency hearing or in a state court. While the novelty of such FISA reforms does not evidence that the law is constitutionally infirm, proposals recommending that a public advocate participate in the FISA court raise several difficult constitutional questions, the resolution of which will ultimately depend on the specific language of a particular law. This report will explore the novel legal concept that is the public advocate and discuss several major constitutional issues surrounding the FISA advocate idea, highlighting relevant issues to consider, including what is the legal role of a public advocate; how a FISA advocate can be constitutionally appointed; and whether employing a public advocate before a federal court adheres to the demands of the United States Constitution."
CRS Report for Congress, R43260
Federation of American Scientists: http://www.fas.org/sgp/crs/index.html