Time for a Public Advocate on FISA Court

Few people like the notion of someone looking over their shoulder, and the judges of the Foreign Intelligence Surveillance (FISA) Court are no exception. While President Obama is widely expected to call on Friday for the inclusion of an independent privacy advocate on that secret court, U.S. District Judge John D. Bates, speaking for the entire U.S. judiciary, has made it clear that the members of the court are strongly opposed to the idea.

Currently, the court acts very much like a grand jury and only hears the government’s perspective.

According to the Department of Justice, the government made 1,856 applications to the court in 2012 asking for authority to conduct electronic surveillance or physical searches for foreign intelligence purposes. The government later withdrew one request, and the court modified 40 requests, but didn’t turn down a single one.

At a time that the American public has expressed alarm and disconcertment regarding the stunning revelations made by Edward Snowden, including the fact that the NSA collects phone records of millions of Americans for possible future surveillance, the idea of a privacy advocate has been welcomed in many quarters.

But Judge Bates, in a letter to Senator Dianne Feinstein, Chairman of the Senate Intelligence Committee, insisted that such a step “is unnecessary — and could prove counterproductive — in the vast majority of FISA matters … [which] typically implicate the privacy interests of few persons other than the specified target.

“Advocate involvement in run-of-the-mill FISA matters would substantially hamper the work of the Courts without providing any countervailing benefit in terms of privacy protection or otherwise,” he claimed, adding that “indeed, such pervasive participation could actually undermine the Courts’ ability to receive complete and accurate information on the matters before them.”

Left unsaid in his letter was precisely how and why an advocate, who would inevitably have to be an individual with top-secret security clearance, would undermine the court’s ability to operate.

Leaving the door slightly ajar for the notion of including a privacy advocate on decisions that affect the lives of millions of Americans, Bates wrote that “in those matters in which an outside voice could be helpful, it is critical that the participation of an advocate be structured in a manner that maximizes assistance to the Courts and minimizes disruption to their work.”

The judge was quite blunt in explaining what he meant. “An advocate appointed at the discretion of the Courts is likely to be helpful, whereas a standing advocate with independent authority to intervene at will could actually be counterproductive.”

In other words, as far as the judges at FISA are concerned, the most they would agree to is an advocate they would get to appoint, presumably because such an individual would be unlikely to object to the courts’ decisions, thus making the advocate’s role all but irrelevant.

The fate of the NSA’s highly controversial phone record collection program may wind up being reviewed by the Supreme Court. Last month, federal judges issued conflicting rulings on whether the program is legal. U.S. District Judge Richard Leon of Washington ruled that the program is likely unconstitutional, calling it “Orwellian” in scale, though he stopped short of ordering the NSA to actually stop collecting records because of expected appeals. Eleven days later, U.S. District Judge William Pauley III in Washington declared the NSA program to be legal in dismissing a lawsuit filed by the American Civil Liberties Union. The rulings are being appealed, and are slowly moving through the legal system.

But the collecting of phone records is only one such effort by the NSA. Snowden has been slowly releasing the documents he purloined before fleeing the U.S., and there may be more surprises to come. In addition, what remains unknown outside the NSA is the various programs that Snowden didn’t manage to get information about.

Feeling the brunt of public anger after Snowden, a former National Security Agency systems analyst, leaked myriads of classified documents exposing details about secret surveillance programs last year, President Obama asked the Privacy and Civil Liberties Oversight Board, a semi-independent agency nominated by the president but reporting to Congress, to review existing NSA practices.

He also appointed a second task force, the Review Group on Intelligence and Communications Technologies, to produce a report with their recommendations.

Obama is scheduled to announce his position on Friday, and is widely expected to support some of the suggested changes, including adding the position of public advocate to the FISA court.

We encourage the president to do so.

The FISA court currently has unprecedented powers that have already affected the privacy rights of millions of Americans. Such an advocate would not be representing the interests of terror suspects or any other individuals, but rather those of the American people.

This advocate must be a trustworthy individual outside the court system, who would be prepared to challenge the views of the government and actively influence the judges on the FISA court. Such a step would allow the government to continue engaging in intelligence-gathering efforts while doing more to protect the privacy rights of innocent Americans.