Agreeing---Sort Of---with Both Carrie and Steve on FISA

I find myself sympathetic to both Carrie and Steve on FISA oversight. At the risk of staking out a very muddled middle ground, I want to try to bridge the dispute a bit. Steve is impatient with Carrie's concern that the FISA process is overlawyered, but he actually does not address her core concern, which, at least in my view, is valid: Carrie's worry is that no matter how many additional layers of scrubbing Congress adds, the promised legitimacy for the intelligence collection activity will never come. As long as the process remains classified and opaque to the public, the goal posts will continue to move. So the worry is not just about over-lawyering; it's a more basic anxiety about whether the post-Watergate trade of secret oversight in exchange for legitimacy is still a vital one. Carrie's concern here is one that is shared widely in the intelligence community---and for good reason. There's a lot to it. What's more, I think it's bolstered, not undermined, by the example of the Guantanamo bar---which Steve plays as a kind of trump card. After Boumediene, the government played the habeas game (not that it had any choice). It litigated question after question---and after an initial spate of losses in the district court, it has won big on both substantive and procedural questions. The Guantanamo bar functioned as exactly the kind of independent advocacy voice Steve describes. And as Jack has written, this provided enormous legitimacy for detention---at least in the short term. So far, it's a good example for Steve. The trouble is that just as Carrie has worried will happen with FISA, the goal posts then moved. Judicial review of detention used to be the gold standard of legitimacy. Now, the advocacy groups object to detention in principle, demanding the release of people whose detentions have been upheld by the courts. They demand a per se end to non-criminal detention. Observers routinely dismiss whole swaths of D.C. Circuit case law on detention, because, well, they don't like them. So while Steve's point about the Guantanamo bar is exactly right, it also underlines Carrie's anxiety. And that said, I still tend to support the idea, when the FISA Court feels that an adversarial presentation would be useful, of discretionary appointment of a special advocate to argue against the government's position. The reason, quite simply, is that while I have the highest regard for the Justice Department folks who function as a bridge between the intelligence community and the court, they are not, at the end of the day, advocates for the targets. They are advocates for the government---and the process. And there are times, I suspect, when the court would benefit from someone's raising questions before the court that the government tends to work out within its own internal deliberations before ever making its presentation to the FISA judges. The key, it seems to me, is that this sort of adversarialism should not be the norm in proceedings before the FISA court. It should take place only when the court itself feels it would benefit from an alternative view.