Executive Power

Defriending FISA: A Response to Carrie Cordero

By Steve Vladeck
Monday, August 12, 2013, 2:21 PM

The central theme of Carrie's post critiquing proposals for FISA reform appears to be that there are already too many lawyers and too much oversight of how the NSA conducts "foreign intelligence surveillance," and so any proposals to increase these accountability mechanisms by appointing some kind of "special advocate" are necessarily myopic insofar as they (1) are not likely to accomplish all that much vis-a-vis the status quo; and (2) fail to appreciate that we already have "the most oversight-laden foreign intelligence activity in the history of the planet."

As I explain below the fold, I respectfully disagree on both fronts.

On the potential role of security-cleared private counsel, Carrie fears that "[t]he advocate will eventually be just another participant in closed-door government deliberations. For these reasons, it is unclear how an additional advocate will be all that difference from the current trifecta of executive, legislative, and Congressional branch oversight." [N.B.: I assume she meant to write "judicial" in the last clause.] But we need look no further than the Guantánamo habeas litigation for evidence of the very important--and independent--role that security-cleared private counsel have played, and can play, in checking the government in largely secret, national security-based litigation. Indeed, for all of the (many) criticisms of the Guantánamo habeas litigation, the concern that the habeas lawyers have been "captured" by the government just isn't one of them. To be sure, these are outside, private counsel--and not members of an existing government agency. But that's why many of the proposals for a "special advocate" before the FISA Court, including my own, have focused on creating a pool of such private counsel to handle these cases.

As for the "most oversight-laden foreign intelligence activity in the history of the planet" (I'm sure that some Roman Senator somewhere is spinning in his grave...), there are two important caveats to Carrie's statement: First, Carrie assumes that everything the government is doing under the auspices of FISA is "foreign intelligence activity," even as we learn more and more about the volume of domestic data, or at least data involving U.S. persons, being swept up by the government pursuant to its FISA authorities. One response is that such interception is just the accidental byproduct of otherwise lawful foreign intelligence surveillance activities, but of course, that's the nub of the current debate. And the more that the government's conduct is itself blurring that critical line between foreign intelligence surveillance and domestic data interception, the more such oversight is called for as a matter of prudence, if not of constitutional imperative--and the less sure I am about Carrie's historical claim.

Second, and in any event, Carrie's post thereby reasserts the canard that the FISA Court is involved in vigorous judicial oversight of the government's surveillance activities under sections 215 and 702. The FISA Court may be providing more judicial oversight than that which previously accompanied such programs, but anything is more than nothing. That conclusion doesn't by itself make such review vigorous or sufficient. It's one thing to say that courts are involved in signing off on these programs--and they clearly are. It's another thing to imply that courts are carefully scrutinizing these programs for both procedural and substantive legality. Even if the procedural scrutiny is quite intense, one need only read the statutory provisions outlining the scope of the FISA Court's review in such cases, Judge Carr's op-ed, Judge Robertson's remarks, or the capacious understanding of "relevance" undergirding the section 215 controversy, to realize just how little of the FISA Court's role in such cases is devoted to providing the substantive oversight in which we're supposed to take so much comfort. I don't know how much more vigorous the process would become simply through the participation of outside special advocates, but it seems to me worth finding out. All the more so when two former FISA judges have so publicly endorsed such a measure.

To be sure, I agree with Carrie that ex ante review raises a host of procedural (if not legal) concerns--and have written as much elsewhere in the context of targeted killings. But whereas I'm sure reasonable people will continue to disagree about whether the NSA's activities under FISA are consistent with the Fourth Amendment and with FISA itself, I have a hard time seeing why it would be so problematic for the FISA Court to have a little more of an opportunity for adversarial process in answering that fundamental question--after the initial certification has been provided--to ensure more than that the government has simply dotted its i's and crossed its t's.