By: Jeff Elkin

In June 2013, Edward Snowden revealed, inter alia, that the secret Foreign Information Surveillance Court (FISC) had authorized the government to surreptitiously track millions of Americans’ cell phone and internet use. In response to the ensuing public outrage, members of Congress introduced a flurry of bills designed to constrain the government’s Hobbesian power.

On October 30, 2013, the USA FREEDOM Act (“the Act”) was introduced by Sen. Patrick Leahy (D-VT) and USA PATRIOT Act co-author Rep. Jim Sensenbrenner (R-WI) as S. 1599 and H.R. 3361, respectively. This omnibus surveillance authority and oversight reform package is steadily gaining bipartisan congressional and public support due to its potential to meaningfully protect Americans’ privacy.

Among the Act’s most important and novel provisions is the creation of an Office of the Special Advocate (Advocate) within the Judicial Branch. The Advocate would “vigorously advocate before the [FISC] or Foreign Information Surveillance Court of Review [“FISC of Review”]… in support of legal interpretations [of FISA] that protect individual privacy and civil liberties.” While the Advocate’s purpose is widely lauded, its potential effectiveness and its constitutionality have been scrutinized.

The FISC’s authorization of bulk phone and internet surveillance arose from a broad interpretation of the Foreign Information Surveillance Act (FISA) requirement that information sought be “relevant to an authorized [counterterrorism or anti-spying] investigation.” Many think the FISC ruled the phone and internet data of millions of Americans “relevant” because it considered only the government’s argument for this authority without hearing counterargument for a narrower interpretation. The Advocate was created specifically to make that argument.

Jesselyn Radack, National Security and Human Rights Director at the Government Accountability Project, lauds the Advocate as a “step in the right direction” but cautions that the Advocate would need to be completely insulated from the executive branch. Otherwise, he or she could be unduly swayed by the government’s rhetoric of urgency, necessity, and lack of less-intrusive alternatives. Radack laments seeing “some really good attorneys, including President Obama, get completely co-opted by the politics of the institutions they occupy.”

The Act’s drafters address this threat by attempting to separate the Advocate from the executive branch. The Advocate would be nominated by the Chief Justice of the Supreme Court from a list of candidates selected by the Privacy and Civil Liberties Oversight Board for their “professional experience in such areas of law that the Special Advocate is likely to encounter… and demonstrated commitment… to civil liberties.” The Advocate “may be removed only for good cause shown, including the demonstrated inability to qualify for an adequate security clearance.”

Because the Act does not specify which federal agency will issue the Advocate’s security clearance, some worry that any designed executive entity could abuse its power over security clearances to prevent a newly-selected Advocate from ever arguing in the FISC. National security scholar and National Security Agency whistleblower Thomas Drake fears that in vetting the Advocate, the government could over-emphasize or even fabricate data to “preclude [the granting of] the clearance…. The Chief Justice could have selected the perfect advocate, but [that person still] may be denied a clearance.” Accordingly, Congress should ensure that the Advocate’s security clearance is speedily granted by an agency purposefully isolated from law enforcement and intelligence agencies.

Also, the Advocate has no automatic right to participate in a FISC proceeding, but may be discretionarily “appointed” by the FISC. Drake and Radack cite this provision as the downfall of the Act’s Advocate as an effective government accountability mechanism. Drake observes that if given such discretion, the FISC may never elect to hear the Advocate’s privacy-centric argument against the government. This is especially true if the government is allowed argue for the Advocate’s exclusion in the Advocate’s absence; there is no indication that the government is precluded from making this ex parte argument. Therefore, the Advocate should be granted an automatic right to participate in FISC proceedings.

Finally, the Congressional Research Service (“CRS”) questions the constitutionality of introducing a “public advocate” such as the Advocate into the FISC. In their blog, Just Security, Professors Lederman and Vladeck disregard most of the CRS concerns as “insubstantial[,] inapposite[,] or… avoid[able] by using appropriate statutory language.” However, they take seriously the CRS concern regarding the Advocate’s constitutional authority to appeal a FISC ruling. To satisfy appellate standing requirements, Lederman and Vladeck propose, inter alia, that Congress define their public advocate as “a representative of affected but absent third parties [e.g. those targeted by electronic surveillance], akin to a guardian ad litem.”

The Act provides that the Advocate “may appeal or seek review of a decision of the [FISC] or [FISC of Review]” and “shall have standing as a party before the [FISC of Review] on such appeal.” Any appeal by the Advocate must be heard by the FISC of Review. Further, the Advocate  “may seek a writ of certiorari from the Supreme Court of the United States for review of any decision of the [FISC of Review]” and in such proceedings “shall have standing as a party.” Lederman and Vladeck would probably liken the Advocate’s “standing as a party” to that of a guardian ad litem in a court of general jurisdiction. The Special Advocate’s standing to appeal could also be analogized to the standing provided to third parties by private attorney general provisions in environmental regulations.

A court would likely find that the Advocate, conceived as a legislatively-charged representative of injured persons, has standing to appeal decisions of the FISC and the FISC of Review. According to Hollingsworth v. Perry, Article III standing requires that a potential litigant have “suffered a concrete and particularized injury.” In Clapper v. Amnesty International, the Court denied standing to plaintiffs who reasonably believed, but could not prove, they had been or would be targeted by FISC-authorized surveillance. Dissimilarly, the Act requires that the Advocate be given copies of the government’s applications for surveillance warrants immediately after they are filed with the FISC. With these documents, the Advocate could prove that specified persons would be targeted by government action and that their privacy rights would be violated, thereby providing grounds to argue on the target’s behalf.

The Clapper Court also notes its reluctance to extend standing requirements when “reaching the merits of the dispute would force us to decide whether an action [of the legislative or executive branch] of the Federal Government was unconstitutional…. [Further,] we have often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs….” However, “[t]he law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp powers of the political branches.” This principle works against the standing of private parties seeking to invalidate government actions and favors the standing of statutorily-directed litigants. Whereas the Clapper, Hollingsworth, and Lujan plaintiffs were voluntary and private parties, the Act defines the Advocate as a government official mandated to protect certain interests by arguing for and appealing FISC and FISC of Review decisions. Judicial denial of standing to an official created by Congress to enforce statutorily-specified rights and liberties in a secret executive tribunal could be construed as a usurpation of legislative political power and a violation of the principle of legislative supremacy.