The USA FREEDOM Act and a FISA "Special Advocate"

For those who haven’t been following super-closely, the Manager’s Amendment to H.R. 3361—the USA FREEDOM Act—is now slated to be considered by the full House of Representatives in the coming days. And although there’s a lot to be said about the various substantive surveillance reforms reflected in the current iteration of the bill, one of the points that has gone virtually unnoticed thus far is the extent to which the Amendment has so thoroughly watered down the provisions creating a “special advocate” (who would argue against the government before the FISA Court in at least some cases)— as to leave the status quo virtually unchanged. Thus, the current section 401 of H.R. 3361 would constitute the “special advocate” as little more than an amicus—drawn from a standing pool of private lawyers to appear when appointed by the FISC. Such an appointment is mandatory in any case “that, in the opinion of the court, presents a novel or significant interpretation of the law, unless the court issues a written finding that such appointment is not appropriate.” Amicus appointments are otherwise left to the discretion of the FISC in all other cases. And once a final judgment is entered in any case in which an amicus has appeared, that’s the end of the matter; the bill provides no mechanism for the amicus to pursue any form of rehearing or appellate review. Reasonable people can certainly disagree over the optimal way to implement the “special advocate” idea. But this just ain’t it. Thus, as the Liberty and Security Committee of the Constitution Project has explained in an important letter sent to Congress earlier today,

Although the bill requires appointment of an amicus in certain cases, it provides an unreviewable means for FISC judges to sidestep that requirement simply by asserting that such an appointment is unnecessary. And insofar as FISC already possesses the authority to appoint amici in appropriate cases, but has seldom exercised it, it seems likely—if not certain—that H.R. 3361 will merely perpetuate the status quo. If all a FISC judge must do to avoid amicus participation is issue an unreviewable, and presumably classified, “written finding” that such an appointment is unnecessary, we believe H.R. 3361 will produce a negligible increase in adversarial presentation before the FISC.

Instead, the Committee explains that any “special advocate” proposal, in order to be effective, must include at least three elements:

1. The special advocate must have an unconditional right to participate in at least some cases. 2. The special advocate should be empowered to represent U.S. persons who are subject to the surveillance orders at issue. 3. Cases in which the special advocate participates should be “certified” to the FISCR to ensure meaningful appellate review.

As our more frequent readers know, I wholeheartedly endorse all three of these elements—along with the more general goal of increasing meaningful adversarial participation before the FISC as a means of increasing accountability. This is especially needed in those cases in which FISC is not just undertaking individualized probable cause assessments, but is instead signing off on bulk and/or programmatic surveillance (indeed, Congress has already provided for adversarial participation in those contexts—just not enough). And although Judge Bates, among others, has offered a series of constitutional and prudential objections to the idea of a “special advocate,” those objections are aimed at far more expansive—and unnuanced—conceptions of the role the special advocate should play in FISC cases going forward. Ultimately, if Congress is serious about meaningful reform not just of substantive surveillance authorities, but of the means by which those authorities are overseen, it should take the Constitution Project’s new letter very seriously—and reconsider section 401 of the Manager’s Amendment to H.R. 3361.