Computers, Privacy & the Constitution

Amici Curiae in the FISA Court

-- By AnaCarolinaVarela - 09 May 2015

ACLU v. Clapper May Mean the FREEDOM Act is Adopted

The Second Circuit’s opinion in ACLU v. Clapper highlights the growing concern among the judiciary regarding Section 215 of the PATRIOT Act, as well as broader questions about the scope of congressional authority to enact these programs. While yesterday’s opinion briefly touches upon the potential Fourth Amendment issues apparent in the NSA’s dragnet program, the Court invalidated the program on statutory, as opposed to constitutional, grounds. The invalidation of NSA dragnet operations under 215 will no doubt spur congressional action on June 1st when the current PATRIOT Act expires, as Steve Vladeck points out. I wish to highlight, briefly, some of the implications of the adoption of the FREEDOM Act (the bill likely to be enacted in lieu of extending the PATRIOT Act in its current form).

Potential Drawbacks of the ACLU v. Clapper Decision

First, focusing the debate on telephony metadata is a mistake; we now know that the data being collected extends far beyond telephones alone. NSA whistleblower Thomas Drake calls this phenomenon “unfortunate.” It prevents anyone from discussing PRISM, MUSCULAR, or XKeyscore, and the ramifications of that unprecedented data collection. Drake and others fear that the passage of the FREEDOM Act would keep public debate on the phone collection program, and away from these other programs.

Second, should the government end its bulk collection program, the lawsuits brought against the government would likely be dismissed. In fact, the ACLU has stated that it would withdraw its suit “with an arrangement under which the telephone companies will retain the metadata in question, subject to valid government subpoenas.” This kind of incremental change, then, will likely placate opponents, and remove this debate from the public eye.

With respect to the cell phone metadata collection program itself, the FREEDOM Act would, admittedly, make some positive change; however, it’s not enough. A number of the provisions that would be enacted to enhance civil liberties carry insufficient safety valves to ensure meaningful protection. To the extent that we accept some targeted data collection as reasonable and constitutional, we must look to the operation of the FISA court under the proposed Act for legitimacy. For the purposes of this paper, I focus on the lack of a serious adversarial system in the FISC and remedies in the FREEDOM Act.

Amici Curiae Cannot Replace Advocates

Judge Sack’s concurring opinion points out that the operation of the Foreign Intelligence Surveillance Court is not characterized by “a true adversary system.” In fact, in it, Judge Sack discusses the importance of the presence of counsel to the Pentagon Papers case to highlight the centrality of adversary proceedings in the process of factual development and vindicating rights. As Steve Vladeck notes, however, the proposed FREEDOM Act may not really resolve that. (I note that, while his analysis deals with an earlier version of the bill, the criticisms are applicable nonetheless).

In its current form, the FREEDOM Act directs the appointment of amici curiae “to assist such court in the consideration of any application for an order or review that, in the opinion of the court, presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is not appropriate.” Setting aside the potential Article III issues such a mandate might present, we might also properly question the effectiveness of such a system.

Amici Curiae Are Not "Interested Parties"

First, there is the distinct possibility that the amici may never be called upon, given the discretionary nature of the provision. Under the bill, FISC judges may, in perfectly good faith, find that an issue presents no novel issue of law, and determine that no amicus is necessary. On the other hand, requesting officials, in the interest of speed, may seek to frame requests as falling into established legal categories, and complex issues may never be properly examined. These concerns are heightened when one considers Judge Bates’ statement that amici are unnecessary, due to the routine nature of the matters the FISA court usually resolves.

There is also a problem with the fact that amici are not “adversaries” in the traditional sense. Though the FREEDOM Act would direct them to "provide . . . legal arguments that advance the protection of individual privacy and civil liberties," there is no guarantee that there will be any effective or zealous advocacy. Without clients, these attorneys, competent though they may be, have less incentive to passionately defend the civil liberties of the unknown targets of these requests. Although the nature of the FISC’s subject matter jurisdiction is exceptionally sensitive, the importance of a check on government intrusion is also of vital importance. In order to balance those interests, one small but potentially helpful change would be to convene a group of independent amici – that is, attorneys selected by a non-FISA judges (or even non-judges), who are publicly nominated, vetted, and appointed. These individuals, at least, would be publicly responsible for protecting civil liberties and that might produce a small incentive to advocate on behalf of the public interest.

The End-Run around Amici

Another problem with the bill is that it does not require the government to provide amici with “information . . . that is privileged from disclosure.” This limit on amici's access constrains the attorney’s ability to properly distinguish facts or establish a case. Although legal issues may be ventilated adequately, the ability to apply law to fact is seriously constrained by this provision – especially because “privileged from disclosure” is nowhere defined.

Finally, there is the simple fact that more than one judge on the FISA court has caught government attorneys lying about the scope of data collection activities. Without transparent proceedings, or zealous advocates, there may be little opportunity to discover such dishonesty, and make determinations based on real facts. Even if people agree that the solution to unbridled data collection is the approval of an Article III court, the lack of transparency and a culture of dishonesty among the advocates before it, mean that some of the most important Fourth Amendment decisions are happening on the basis of one-sided, false information. Clearly, these reforms, though helpful, are insufficient.


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r3 - 26 Jun 2015 - 20:44:16 - MarkDrake
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