Making FISC More Adversarial: A Brief Response to Orin Kerr

By Steve Vladeck
Monday, July 8, 2013, 11:46 PM

Over at the Volokh Conspiracy, Professor Orin Kerr has a thought-provoking post on one route to reform of the Foreign Intelligence Surveillance Court: have Congress give an adversarial role to the Oversight Section at DOJ's National Security Division, such that security-cleared DOJ lawyers would "have a right to file a motion to oppose any application before the FISC," and such a motion would then trigger litigation and a dispositive ruling with many--if not most--of the hallmarks of adversarial process. Such a reform, in Orin's view, would thereby ameliorate, if not eliminate, at least some of the oft-repeated concerns with the ex parte FISC process. And as importantly from the government's perspective, Orin would have such a motion follow the initial issuance of an order/certification by the FISA Court, so that the litigation isn't slowing down the government's ability to actually conduct the authorized surveillance. Such an approach, Orin writes, "offers a middle ground that may please no one."

It actually pleases me greatly, but with one fairly significant tweak: I'm not sure why the exact same scheme couldn't work with lawyers who serve in a role akin to "special advocates" in the British and Canadian systems--private security-cleared lawyers, not government employees, who do not have specific ethical obligations to individual clients, but who are nevertheless tasked with the responsibility to serve as adversaries in secret litigation commenced by the government. Private security-cleared counsel already appear before the FISA Court in those cases in which Congress has created a right to challenge amenability to a FISC order; the expansion would be to assign private, security-cleared counsel to every granted application--and give them a fixed period of time within which to challenge the application (along the lines of what Orin proposes for the Oversight Section). Yes, there would need to be a cohort of such lawyers able and willing to serve when needed, but in that regard, the Criminal Justice Act could provide a model on which to base such a system.

In my view, "special advocates" [with which I have significant concerns in other contexts] would solve the biggest problem with Orin's proposal vis-a-vis FISC: the difficulties inherent in expecting government lawyers zealously to critique the government's legal position in ongoing litigation. Whether for reasons of career advancement, professional courtesy, institutional pride, or others, it's hard to believe that even the most objective and fair-minded government lawyers would vindicate the purposes of an adversarial process to the same extent as private counsel. And even if they could, there would always be the perception problem--the fact that it would still "look" funny. So if Congress could, per Orin's proposal, conscript the Oversight Section into doing the adversarial work, why not make it a truly adversarial process instead?