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The Constitutionality of a FISA “Special Advocate”

The Privacy and Civil Liberties Oversight Board (PCLOB) is holding a day-long hearing today on possible reforms to the NSA’s surveillance activities—especially those conducted pursuant to section 215 of the USA PATRIOT Act and section 702 of the Foreign Intelligence Surveillance Act (FISA). The discussion likely will focus on the legal and policy wisdom of various of the competing reform proposals (which Lawfare summarized here), one of the common themes of which is the authorization of a “special advocate,” i.e., a security-cleared lawyer who could present adversarial briefing and argument before the FISA Court (FISC) in at least some cases (such as those raising significant legal questions).

A new Congressional Research Service report raises some constitutional questions about such a reform. As we explain in the post that follows, however, most of those questions are insubstantial or inapposite—or at the very least can be avoided by using appropriate statutory language.  On the other hand, one of those questions is substantial—namely, whether the special advocate would have the constitutional authority to appeal a FISC ruling. Even so, it is not clear such an authority would be necessary in order to ensure more frequent appellate review in appropriate cases.  Accordingly, whatever one thinks of the merits of a special advocate as a policy matter, we don’t believe there is any fundamental constitutional impediment to legislation that would authorize a role for such an advocate.

I.  Would the Special Advocate be an “Officer of the United States” Subject to the Appointments Clause?

The CRS Report begins with an extended analysis of purported Appointments Clause issues surrounding the special advocate, including whether she would be a “principal” officer (who could therefore only be appointed by the President with the advice and consent of the Senate), or an “inferior” officer (who could be appointed by the President, by the head of a Department or by a court).

The CRS Report appears to assume that the special advocate would not be appointed in a manner allowed under the Appointments Clause.  That assumption may well be mistaken, depending on the bill in question.  More fundamentally, however, the CRS Report’s analysis depends upon a fundamental, mistaken assumption that the special advocate would be an officer of the United States in the first place.  But she would not.

For one thing, the advocate would not necessarily be someone appointed to a position of employment within the federal government—she could instead be someone assigned on a case-by-case basis to file briefs before the FISC, or a federal contractor, in which case she would not be an “officer” subject to the Appointments Clause.  (See subsections II-B-1-a and II-B-1-c of this OLC memo.)

In any event, even if the legislation provided that the advocate were to be appointed to a position of employment in the federal government, she would not exercise significant government authority pursuant to federal law, and thus would not be an officer for Appointments Clause purposes.  (See subsection I-B-1-b of that 1996 OLC memo.)  The role of the advocate would be solely to present legal arguments to the FISC, as an attorney does when appointed as an amicus by the Supreme Court to represent an undefended position in a case before the Court.  (See Marty’s discussion of the Court’s practice.)  Nothing the advocate would do would have any binding effect upon any entity.  (And even if the particular legislation in question provided that the special counsel was to be a “representative” of third parties affected by the proposed order (such as the U.S. persons whose metadata were collected under section 215, or the U.S. persons whose communications are collected in a section 702 surveillance), that would not give the special advocate the power to exercise significant governmental authority.)

The CRS Report reaches the contrary conclusion by referring to the Supreme Court’s holding in Buckley v. Valeo that Federal Election Commissioners were officers, in part because they were assigned the authority to bring suit against private parties, on behalf of the federal government, to compel compliance with federal election laws.  See 424 U.S. at 138.  But the special advocate would have no such authority.  She would not be empowered to commence a lawsuit to compel compliance with federal law, let alone to do so on behalf of the government; instead, she would merely be allowed to participate as an attorney in cases already filed in the FISC by the government itself.

Accordingly, legislation providing for a special advocate would not raise any Appointments Clause issue.

II.  Article III Adverseness and the FISA Court

The heart of the CRS Report curiously focuses on an issue that is not really related to the question of whether a special advocate would be constitutional—namely, whether the FISC process itself complies with Article III.  Article III’s limitation of the federal judicial function to “Cases” or “Controversies” generally requires that federal courts adjudicate only concrete disputes between parties with adverse interests.  FISC proceedings, of course, are almost always ex parte and nonadversarial—they consist, in essence, of an Article III judge determining ex ante whether a proposed executive branch operation would be lawful.  That’s not the sort of thing Article III courts are generally empowered to do.

The CRS Report is therefore correct that this basic characteristic of FISA raises a significant constitutional question.  Indeed, in testimony before Congress in connection with consideration of the original FISA, future circuit (and FISA Court of Review) judge Laurence Silberman argued that the ex parte nature of FISA proceedings was inconsistent with Article III.  OLC Assistant Attorney General John Harmon opined to the contrary in those hearings, noting that the FISA approval process was in many respects analogous to the traditional function of courts adjudicating the lawfulness of proposed search warrants—an historical exception to the requirement of adversary proceedings for Article III courts, premised on the theory that such warrant proceedings are ancillary to possible future criminal (or civil) proceedings in Article III courts in which the validity of the warrant might be subject to full adversarial scrutiny.  Lower courts subsequently agreed with OLC that the FISA process did not transgress Article III.

To be sure, more recent amendments to FISA have placed considerable pressure on the warrant analogy that supported the Harmon OLC analysis.  Unlike in the original FISA, for example, production orders under section 215 and certifications under section 702 don’t so closely resemble traditional warrants, and are far less likely to be subject to subsequent adversarial challenge.  They thus raise a more difficult Article III adverseness question.  (The ACLU’s original litigation challenging Section 702 raised that question directly—see pages 49-51 of this brief—but it was left unresolved when the Court held in Clapper that the ACLU lacked standing.)  On the other hand, both authorities include express authorizations for the recipient (of 215 orders or 702 directives) to contest cases initiated by the government—thus, perhaps, providing for the requisite Article III adverseness in the event the warrant analogy is unavailing.

But regardless of the ultimate merits of this Article III question, the important point for present purposes is that the creation of a special advocate could hardly be said to raise it.  Indeed, we’re hard-pressed to see why the additional participation of another lawyer, in order to present to the court a position adverse to the government, would exacerbate any Article III concerns about the lack of adverseness.  To the contrary.

The CRS Report also questions the “standing” of the special advocate to participate before the FISA Court, but this, too, is a red herring.  The “case” in question is initiated by the government. If the legislation is properly drafted, the “special advocate” would be merely a lawyer, not a party to the case—or, perhaps, the attorney for third parties whose metadata or communications are at issue.  Accordingly, so long as the proceeding before the FISA Court already satisfies Article III, then the statutory inclusion of an additional lawyer should raise no new Article III concerns.

III.  Constitutional Standing to Appeal

The CRS Report does identify one genuinely significant constitutional question—namely, whether a special advocate would have Article III standing to appeal a FISC decision to the FISA Court of Review (and ultimately to the Supreme Court).  As the Supreme Court held in the Proposition 8 case this June, a party seeking to appeal a judgment must have a direct and personal stake in the outcome of the appeal.

If the special advocate would not be a party to the case, or even an attorney representing a party who might be adversely affected by a FISC order, it is doubtful she would have standing to appeal such an order.

But although the CRS Report suggests this concern may be fatal, it fails to consider other potential mechanisms for ensuring more frequent appellate review.  Perhaps, for instance, the legislation could provide that the special advocate would be a representative of affected but absent third parties (such as the U.S. persons whose metadata were collected under section 215, or the U.S. persons whose communications are collected in a section 702 surveillance), akin to a guardian ad litem.  Or perhaps the legislation might require FISA Court of Review confirmation of a FISC judge’s ruling as a condition for the government to proceed with proposed surveillance or collection in certain cases raising novel and important questions of law.  Alternatively, in the section 215 and similar contexts, perhaps the legislation could create greater incentives for the recipient of orders (e.g., the service providers) to appeal in cases where the special advocate has appeared and would be able to bear the burden of briefing and argument on appeal.

Crafting one or more such provisions is the most serious constitutional challenge for proponents of a special advocate; but, in contrast to the CRS Report, we are not convinced that it is necessarily an insurmountable challenge.  And, more importantly for present purposes, this challenge does not change the fact that there are no substantial constitutional difficulties in authorizing participation of a special advocate before the FISC itself.

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In sum, reasonable minds may differ as to whether Congress should authorize a role for a special advocate.  And certainly such a proposal would raise considerable practical concerns that would necessarily shape the specifics of any legislation (see, e.g., David Kris’s discussion at pages 36-41 of his paper on section 215.)  But as long as Congress provides that such an advocate would be merely another lawyer participating in proceedings before the FISA Court and FISA Court of Review (either as an amicus or as a representative of third parties), such a reform should not raise any new constitutional concerns, at least so long as the advocate is not afforded a statutory right on her own behalf to appeal FISC decisions.

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About the Authors

is a Professor at the Georgetown University Law Center.

is co-editor-in-chief of Just Security. Steve is a professor of law at American University Washington College of Law. Follow him on Twitter (@steve_vladeck).