Legitimacy, Legality, and Ben's "Muddled Middle Ground" on FISA

By Steve Vladeck
Tuesday, August 13, 2013, 4:04 PM

I must confess to being somewhat vexed by Ben's reply this morning to the exchange between Carrie Cordero and me on FISA reform--not for what Ben says, but for why he thinks that leaves him in a  "very muddled middle ground" between us. Ben's agreement with Carrie appears to be that (1) overlawyering is bad; and (2) the reforms folks like me are calling for won't actually provide the kind of lasting, "promised legitimacy" that our surveillance agencies "need." But I don't disagree with either of these conclusions; I just disagree with the suggestion that these are the points of departure between me and Carrie.

On "overlawyering," my point was simply that I'm not yet convinced that the inclusion of security-cleared, private "special advocates" in at least some proceedings before the Foreign Intelligence Surveillance Court will actually constitute "over-lawyering." One cannot simply assert, as Carrie did in her post, that we already have too many lawyers--and that more wouldn't accomplish anything, especially if these advocates played a very different role from existing players (along the lines I've sketched out elsewhere).

But far more fundamentally, Ben, like Carrie, thinks that the ultimate goal of these reforms is to legitimize our surveillance programs. From that mindset, so insofar as reforms won't produce that legitimacy (curiously measured by the number of civil liberties groups objecting to the program), they're necessarily imperfect and/or incomplete. Again, I don't disagree with the point in the abstract (although Ben should know better than to loop me in with those who think that all of the Guantánamo detentions are unlawful). What separates me from Ben and Carrie is our priorities: I think legality is far more important than legitimacy, and so am far more concerned that the FISA process be reformed to harmonize it with what's actually legal--whether we know about it or not. Having independent, security-cleared counsel arguing against the government in at least some FISA cases may not legitimize our surveillance programs to the degree that Ben and Carrie desire insofar as we won't be able to evaluate their efforts. But I, for one, have a hard time believing that they won't increase the chances that the FISA Court gets the law--on questions like "relevance"--right. And at the end of the day, shouldn't that be our real goal?