The Limits of the Freedom Act's Amicus Curiae
| Citation | Vol. 11 No. 3 |
| Publication year | 2015 |
ABSTRACT
TABLE OF CONTENTS
Introduction .................................................................................. 198
I. The Benefit of a Special Advocate ....................................... 200
A. What Is a Special Advocate? ........................................... 200
B. Debate Is Helpful In An Otherwise Opaque Area of the Law ...................................................................... 201
II. How the Amicus Curiae Falls Short ..................................... 203
A. No Consistent Representation .......................................... 204
B. Curtailment of Ability to Counter Legal Arguments ....... 206
C. Limits on Judicial Review ................................................ 208
Conclusion ................................................................................... 210
INTRODUCTION
As surveillance technologies continue to evolve, a lawyer's ability to employ both legal and technical skill has become an increasingly important attribute. To properly represent her client before a tribunal considering advanced surveillance technologies, a lawyer must be capable of incorporating complex technological issues into persuasive legal arguments. When it comes to many national security issues, however, a lawyer rarely gets to make her case. This is because many national security decisions are made outside of a traditional adversarial setting. Often, only the government's argument is considered.
In an effort to reform the current national surveillance regime, scholars have long called for the creation of a "special advocate."(fn1) While there have been various proposals, the general idea is that an advocate would represent the interests of the public before the Foreign Intelligence Surveillance Court ("FISC")-the "secret" court charged with overseeing government requests to collect data for national security purposes.(fn2) Presently, the FISC operates on an
Arguments in favor of inserting someone to argue against a government lawyer presenting her case before the FISC were bolstered when it was revealed that the FISC had rarely denied a government request.(fn4) Feeling political pressure to do
In Part I, this Essay will argue that the creation of a special advocate is desirable. Part II will then examine the various ways in which the Freedom Act's amicus curiae falls short of providing the same benefits that a special advocate would provide. By doing so, this Essay counsels against conflating the Freedom Act's amicus curiae with a true special advocate, and highlights the need for continued calls for such an advocate.
I. THE BENEFIT OF A SPECIAL ADVOCATE
While some scholars have questioned the benefit of a special advocate,(fn7) this Essay, like others, adopts the position that such an advocate is desirable.(fn8) Part I will first provide a general understanding of what a "true" special advocate would look like, and will then argue why such an advocate would help improve the current national security regime.
A 2013 Congressional Research Service Report generalized some of the leading special advocate proposals as being "unified" around the idea that the special advocate would have "a range of responsibilities, such as being able to intervene in ongoing cases, brief the FISC on relevant matters, conduct some forms of discovery, file motions seeking discrete forms of relief from the court . . . or even appeal an adverse ruling."(fn9) Similarly, one scholar noted that "a common theme" of several proposals was "an increase in the opportunities for adversarial litigation," before both the FISC and the Foreign Intelligence Surveillance Court of Review ("FISCR"), "to ensure that, even behind closed doors, the government's legal position is debated vigorously."(fn10)
For the purposes of this Essay, a "true" special advocate is therefore one that: (a) has the unencumbered right to participate in at least some statutorily defined settings; (b) is properly equipped to act as an equal counter-party to the government lawyer presenting her case before the FISC; and (c) is afforded some ability to seek review by the FISCR.(fn11) While the introduction of a special advocate would not cure the current national security regime of all its ills, Part I.B will address why the introduction of a special advocate would be a step in the right direction.
Because the FISC deals with on-going national security issues...
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