I was on the same panel as Orin at Monday's day-long hearing before the Privacy & Civil Liberties Oversight Board, and think there's a lot to commend his proposal for a statutory rule of lenity as a tool to regulate national security surveillance--to scale back the government's ability to push for expansive interpretations of the specific authorities that Congress has provided. Indeed, Orin's post from Tuesday expounding upon this idea is a must-read, regardless of where one comes down on the current scope of FISA and the need for / merits of reform proposals. As he explains, because of evolving technology and technological capabilities,
The meaning of the [original] statute becomes uncertain, and the executive branch can make arguments to the FISC that the statute intended for one set of facts should also be read to apply to something quite different. The FISC then has a new job, one that is pretty different from its earlier ministerial function: The court has to figure out how the new facts fit into the old statute.
Orin is exactly right that this is one of the key problems Congress faces in thinking about FISA reform. But in the short post that follows, I offer two brief arguments for why a statutory "rule of lenity" won't actually fix this problem: (1) It's too specific to the telephony metadata program; and (2) in any event, it assumes the "lean" interpretation of the statute will be obvious to the FISA Court with or without adversarial briefing and argument. Ultimately, as I argue with regard to proposals for a "special advocate" in a new paper concerning standing to challenge secret surveillance, the reform Orin proposes may well be necessary, but it almost certainly will not be sufficient.
I. Is Lenity a 215-Specific Solution?
The paradigmatic example of the problem Orin identifies is the bulk telephony metadata program. Whatever the validity of the interpretation of section 215 of the USA PATRIOT Act behind the metadata program, the one thing that can't be disputed is that it is not compelled by the plain text Congress enacted in 2001. And as Orin rightly explains, the "rule of lenity," a venerable principle of statutory interpretation in the criminal law context, provides that ambiguities in such laws should be resolved against the government. Thus, application of the rule of lenity to section 215 would almost certainly preclude the reading of that provision that has now been approved by the FISA Court--and that provides the basis for bulk telephony metadata collection. And on a broader level, Orin rightly argues, a FISA-wide rule of lenity would "push the executive branch to seek approval for new programs more from Congress than from the courts."
But lenity only solves the problem of statutes that are materially ambiguous as to the authorities they provide. In that regard, contrast section 215 with section 702--and its sweeping (and express) authorization of government collection of communications so long as the surveillance is targeted at non-U.S. persons reasonably believed to be outside the territorial United States. The statute is similarly explicit that such surveillance must be carried out alongside minimization requirements, but, again, is not "ambiguous" about what that concept means; it's ambiguous only about what the minimization floor looks like.
My point is not that lenity would be unavailable with regard to 702-based surveillance; it's that it wouldn't accomplish nearly as much in comparison to the effect it would have on 215-based metadata collection. And I have to imagine that, with regard to surveillance programs to which the public still is not privy, the same issue could arise. Indeed, would Orin apply lenity to surveillance conducted pursuant to Executive Order 12,333? If so, what would that even look like? In short, I fear that lenity is a solution to the specific problem that has arisen under section 215--and not to the broader concerns that have come to light in recent weeks and months concerning the government's surveillance authorities more broadly.
II. Who's Going To Defend the "Lean" Interpretation?
But even if I'm wrong on that point--and lenity might actually scale back a wider range of the government's authorities than appears at first blush--there's still the question of how lenity will be enforced. Presumably, the idea would be for Congress to actually codify lenity as a rule of construction for all surveillance programs--and one that should be applied by the FISA Court whenever the government argues for authority based upon ambiguous language in a federal statute (again raising the 12,333 problem). But this all presupposes that ambiguity will always be obvious to the court in the mostly ex parte, non-adversarial context in which these questions arise--and that, even then, the "lean" interpretation that the rule of lenity will thereby compel will itself be self-evident. I suspect reasonable minds will differ on this point, but count me as one who isn't particularly confident that all of the FISA Court's judges will raise or enforce a statutory rule of lenity with the vigor and enthusiasm that it would require to be effective.
In other words, it seems to me that, even if lenity is more than a 215-specific solution, it only bolsters the case for having a lawyer before the FISA Court who gets to argue for lenity in cases in which the government is pursuing new interpretations of ambiguous statutory language--that a lenity-based proposal may actually fit together quite nicely with proposals for a "special advocate" (which, to be clear, Orin doesn't reject).
Of course, one might respond that it will never get that far--that a statutory rule of lenity for surveillance programs would dissuade the government from even advancing novel interpretations of its surveillance authorities before the FISA Court, and would instead encourage the government to proceed immediately to Congress whenever such a shift in interpretation would be necessary. But it seems to me that there'd be no reason for the government not to at least try the FISA Court process first, and only seek out legislative reform once they've been turned down by the FISA Court--the exact chain of events that produced the Protect America Act of 2007 and the FISA Amendments Act of 2008. In that scenario, it seems like a rule of lenity would be helpful, but only the more so if there was someone before the FISA Court advancing it on its strongest possible terms.
III. The FISA Reform Endgame
This brings me to Ben's really thoughtful post from Sunday about the legislative dynamics of FISA reform--and to the ultimate endgame here. Putting aside Ben's point about the imperative to reach some kind of substantive compromise, at least on the government's authority under section 215, it seems increasingly clear to me that procedural reforms are inevitable. And what Orin's post (and Monday's PCLOB) hearing drive home for me is the conclusion that no one reform in this area is a magic bullet. Lenity makes sense in the abstract, but may not cover the field and still requires someone to argue on its behalf. A "special advocate" may help in that regard, but, as Marty and I noted on Monday over at Just Security, comes with some baggage, as well. And don't even get me started on increased oversight and reporting requirements...
All of this is to say that, from a process perspective, the most meaningful "compromise" on FISA reform may simply be to pursue a smörgåsbord--to bolster transparency and oversight; to increase adversarial process; to introduce a rule of lenity; and so on. In the end, these different reform proposals may only serve to reinforce the core goal here, rather than stepping on their own toes.