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An Alternative to Rep. Schiff’s Proposal for a FISA Special Advocate

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Wednesday, September 25, 2013 at 3:00 PM

On September 20th, Representative Adam Schiff (D-CA), a senior member of the House Permanent Select Committee on Intelligence, proposed legislation that would amend the Foreign Intelligence Surveillance Act (FISA) to add public interest advocates to the FISA process. The proposed legislation provides that the advocates would, among other things:

• be comprised of a pre-approved pool of outside experts who hold or would be provided with security clearances;
• be called upon by judges of the Foreign Intelligence Surveillance Court (FISC), as needed, in significant or otherwise novel matters;
• have available to them security-appropriate offices, staff, and other facilities; and
• be funded through the Department of Justice, to include compensation at market rates, travel, per diem and other expenses.

As I have written previously, my own view is that a public interest advocate is not needed in light of the tradition of the Department of Justice to present matters to the FISC in an unbiased manner. I am also concerned about the practical impact, over time, of an adversarial process, prior to collection, becoming a bureaucratic impediment to conducting needed foreign intelligence activities. As drafted, Rep. Schiff’s legislation would entail a significant amount of start-up time and effort, not only at the creation of the pool of advocates, but each time an advocate would be assigned to a matter. The advocate would, it appears, have to start from scratch by requesting documents, getting briefed on the collection techniques or programs, and requesting whatever other information it would need to participate in the proceedings. These start-up costs—which can be measured in time, effort and money—should not be underestimated. I would expect that they would be substantial.

However, given Congress’ consideration of this issue, I would like to suggest an alternative proposal that would be both meaningful, and, more appropriate given the current budget environment. Congress and the Executive Branch should consider empowering the existing Intelligence Community Civil Liberties Protection Officer (CLPO) to present his views directly and independently to the FISC, regarding matters significantly impacting civil liberties and privacy. This proposal could be implemented relatively quickly, and would, in my view, address the desire expressed by former FISC Judge Carr and others who believe that the FISC’s decision-making process would benefit from additional views beyond those presented by Justice Department lawyers on behalf of the Intelligence Community.

The CLPO is a statutory-based position created by the Intelligence Reform and Terrorism Prevention Act (IRTPA), which amended the National Security Act of 1947. The CLPO reports directly to the Director of National Intelligence and, by law, shall:

(1) ensure that the protection of civil liberties and privacy is appropriately incorporated in the policies and procedures developed for and implemented by the Office of the Director of National Intelligence and the elements of the intelligence community within the National Intelligence Program;

(2) oversee compliance by the Office and the Director of National Intelligence with requirements under the Constitution and all laws, regulations, Executive orders, and implementing guidelines relating to civil liberties and privacy;

(3) review and assess complaints and other information indicating possible abuses of civil liberties and privacy in the administration of the programs and operations of the Office and the Director of National Intelligence and, as appropriate, investigate any such complaint or information;

(4) ensure that the use of technologies sustain, and do not erode, privacy protections relating to the use, collection, and disclosure of personal information;

(5) ensure that personal information contained in a system of records subject to section 552a of title 5, United States Code (popularly referred to as the Privacy Act’), is handled in full compliance with fair information practices as set out in that section;

(6) conduct privacy impact assessments when appropriate or as required by law; and

(7) perform such other duties as may be prescribed by the Director of National Intelligence or specified by law.

The CLPO is well-positioned to take on the role of public interest advocate; serving in the public interest by ensuring adherence to the Constitution and other laws is already at the core of his job. The CLPO is, I would think, already knowledgeable about all of the relevant FISA surveillance programs. There would be no learning curve, except, perhaps, as to new staff that may be hired. Congress is already familiar with the quality of the CLPO’s work through reports and briefings the CLPO has provided to oversight committees on FISA and other national security matters impacting privacy and civil liberties. The CLPO is a non-partisan senior executive professional.

What the CLPO has not been able to do in the past, however (at least as far as I am aware), is present his and his office’s independent views directly to the FISC, either through written memoranda or oral briefings. This could be achieved through several possible mechanisms. One possibility is that the FISC could amend its rules enabling it to specifically request that the independent views of the CLPO be provided to it, upon request. Another possibility would be that an Executive Branch policy could be issued empowering the CLPO to perform this role. A third option would be for Congress to specifically amend the CLPO’s statutory charter to include this enhanced function. And a fourth, perhaps in conjunction with any or all of the above, would be to amend FISA to make clear that the FISC can request the views of the CLPO directly.

In addition, the CLPO and his staff already maintain the necessary security clearances, secure office space, modes of communication and other practical necessities of participating in the highly classified matters before the FISC. In contrast, the Schiff proposal would require that the Department of Justice fund the special advocates in terms of compensation, office space, and expenses. This considerable bundle of expenditures is nearly impossible to defend in the current budget environment. Earlier this year, I wrote an essay in the National Law Journal regarding the fact that the Justice Department is currently not paying dozens of federal prosecutors in U.S. Attorneys Offices nationwide through its uncompensated Special Assistant United States Attorney Program, as a result of budget constraints. The issue was subsequently reported on by the Washington Post  and Propublica. While the CLPO would certainly need to augment its small staff if it were to serve the enhanced function of FISA special advocate, the costs would be far less than compensating and providing the necessary resources to an outside pool of public interest advocates. It also would avoid what has the potential to turn into an attractive cottage industry for outside experts.

I expect that proponents of an outside-the-government advocate will have trouble believing that an official who reports to the DNI will be capable and/or willing to present an independent view to the FISC. But my experience suggests otherwise: expression of opposing views and debate happens every day within the Executive Branch. Formally empowering the CLPO to provide its independent voice on matters concerning civil liberties and privacy would serve as an effective mechanism for providing an additional, informed view to the FISC.

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