More on the Rule of Lenity: A Reply to Vladeck

On Friday, Steve Vladeck responded to my post from last Tuesday on how a rule of lenity could help the law of national security surveillance. Here are three replies to Steve's post: (1) Steve argues that a rule of lenity may be necessary but isn't itself sufficient to cure FISA's problems. To be clear, I don't think the rule of lenity is sufficient. I see it as a useful way to shift policymaking towards the legislature where it belongs. But I don't claim that it should be the only FISA reform that Congress adopts. (2) Steve also suggests that a rule of lenity would only have a limited impact outside Section 215, and therefore might not achieve the goal of "scal[ing] back a wider range of the government’s authorities." But the point of a rule of lenity is democratically accountable surveillance, not less surveillance. Outside of Fourth Amendment constraints, I don't have a strong view on whether the U.S. government should conduct less surveillance, more surveillance, different surveillance, or the same surveillance. That depends on what works, which is hard for us on the outside to assess. So my rule of lenity proposal is not designed to limit government authority. Instead, it is designed to make sure that Congress is chiefly in charge of approving or disapproving new kinds of surveillance enabled by technological change. (3) Steve notes that a rule of lenity might not have persuaded the FISC to reject the bulk metadata program, and that a special advocate might have been needed to persuade the FISC on that score. I tend to favor a special advocate before the FISC, at least in some form, and the two proposals are not inconsistent (indeed, as Steve suggests, they may work together nicely). But more broadly, I think it's a mistake to focus too much on Section 215. In my view, the FISC should have rejected DOJ's interpretation of Section 215 without a rule of lenity. And we don't know if the FISC would have rejected DOJ's interpretation if Congress had endorsed the rule of lenity, required a special advocate, and hired a skywriter to fly over Washington DC and spell out "No bulk metadata!" We can't be sure of what it would have taken to change the FISC's collective minds in the past. But I don't think that matters at this point. Going forward, the key is to create a better structure for decisionmaking. And in general, I think it's more important to tell the FISC that novel interpretations of FISA are out of bounds than it is to create a forum of adversarial litigation which presupposes that such interpretations may be proper but then sends in a lawyer to argue that the FISC shouldn't adopt a novel interpretation in that particular case. That's the potential downside of special advocate proposals without a rule of lenity: They implicitly approve of FISA court decisionmaking. In my view, that decisionmaking power should rest with Congress, not the courts. A rule of lenity signals to the FISC that it should adopt a more limited role.