Published by The Lawfare Institute
in Cooperation With
Published by The Lawfare Institute
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?
Steve Vladeck is a professor of law at the University of Texas School of Law. A 2004 graduate of Yale Law School, Steve clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit. In addition to serving as a senior editor of the Journal of National Security Law & Policy, Steve is also the co-editor of Aspen Publishers’ leading National Security Law and Counterterrorism Law casebooks.
Requiring the FBI to get a court order before it looks at its own legally acquired information is not just unnecessary—it’s also dangerous to our national security.
The issues—and Lawfare coverage—that kept our editors up at night in 2023.
The House Judiciary Committee’s 702 reauthorization would be reauthorization in name only. It’s a repeal of one of the nation’s key intelligence authorities.