Andrew Nolan
Legislative Attorney
Richard M. Thompson II
Legislative Attorney
Vivian S. Chu
Legislative Attorney
Recent revelations about the size and scope of government foreign surveillance efforts have prompted some to criticize the level of scrutiny that the courts—established under the Foreign Intelligence Surveillance Act of 1978 (FISA)—currently provide with respect to the government’s applications to engage in such surveillance. In response to concerns that the ex parte nature of many of the proceedings before the FISA courts prevents an adequate review of the government’s legal positions, some have proposed establishing an office led by an attorney or “public advocate” who would represent the civil liberties interests of the general public and oppose the government’s applications for foreign surveillance. The concept of a public advocate is a novel one for the American legal system, and, consequently the proposal raises several difficult questions of constitutional law.
First and foremost is the question of what is the legal nature of the office of a public advocate. Some may argue that the advocate is functioning as a non-governmental entity, much like a public defender in an ordinary criminal prosecution, in serving as an adversary to the government’s position. On the other hand, a public advocate, unlike a public defender, would not be representing the views of any particular individual, but rather the general interests of society in ensuring that the government’s foreign surveillance efforts adequately protect the public’s privacy rights. Given that a public advocate can be deemed an agent of the government, perhaps as a member of the executive branch, the advocate is an office that is subject to the general requirements of the United States Constitution.
Among these requirements is Article II’s Appointments Clause that requires that “principal officers” of the United States be appointed by the President and confirmed with the advice and consent of the Senate and “inferior officers” be appointed by the President, the courts of law, or the Heads of Departments. Depending on the scope of the authority and the supervisory controls provided over the FISA advocate’s office, the lawyer who leads such an office may very well be a principal or inferior officer of the United States whose appointment must abide by the Appointments Clause’s restrictions.
Moreover, Article III of the Constitution which vests the judicial power of the United States in the courts of law over certain “cases” or “controversies” may also restrict the role of a public advocate. The nature of the FISA courts and their analogous position to how federal courts approve ordinary search warrants may arguably limit the application of Article III’s case-orcontroversy requirement to FISA proceedings. Nonetheless, Article III typically requires that parties asking a federal court to exercise its remedial powers on his or her behalf must either (1) have personally suffered some actual or threatened injury as a result of the putatively illegal conduct of the other party before the court or (2) be authorized by a party that has suffered such an injury to represent that entity. It is at the very least doubtful that a public advocate has either personally suffered a constitutionally sufficient injury or been properly authorized by an entity that has suffered a constitutionally sufficient injury. Moreover, Article III generally prevents the government from litigating against itself, making it constitutionally problematic to have an intrabranch dispute over foreign surveillance resolved by a federal court. In other words, allowing a public advocate to formally seek judicial relief from an Article III court presents serious constitutional questions. Instead, a more modest proposal that would allow the advocate to generally share its views of the law as friend of the court or amicus curiae may be less likely to run afoul of Article III’s restrictions.
Other constitutional questions are prompted by FISA public advocate proposals. For example, separation of powers concerns that no branch should aggrandize itself at the expense of a coequal branch may also prevent a public advocate from being housed within the judicial branch. Likewise, Article III of the Constitution may present an obstacle to efforts that would make appeals of FISA court decisions more frequent. This report will explore all of these difficult constitutional issues prompted by the idea of including a new adversary in FISA court proceedings.
Date of Report: October 25, 2013
Number of Pages: 34
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