Structural changes to surveillance court offer hope for new protections for non-US users

When it comes to US surveillance reform, structural changes don’t grab as many headlines as, say, ending bulk collection programs. Yet, ultimately, reforming the Foreign Intelligence Surveillance Court (FISC) system, including its Court of Review (FISCR), would be one of the most feasible and effective solutions to protecting the rights of users everywhere against the abuses of intrusive surveillance.

While the US Congress is currently working on legislative proposals that include FISC reforms, but little-to-nothing else in the way of additional protections for non-US persons is under consideration. The Privacy and Civil Liberties Oversight Board (PCLOB), President Obama, and President Obama’s Review Group on Intelligence and Communications Technologies have each proposed various degrees of reforms to FISC. While drastically different, they share a common call for introducing some kind of independent public advocate to challenge government assertions in FISC deliberations.

While there has never been a strong tradition of national human rights authorities and public ombudsman in the United States, there’s certainly precedent to draw upon. Internationally, the idea of a public advocate, or independent officer charged with defending certain rights and liberties of large groups of people has a deep history in courts, administrative agencies, and human rights institutions worldwide.

Access supports many of the suggested reforms including: creating a special advocate to argue against the government’s position and expand appellate review for FISC and FISCR decisions, providing increased technical assistance to FISC judges, and changing the appointment of FISC judges.

Special Advocate
Reform advocates have welcomed the idea of introducing a lawyer to watchdog government actions and to actively protect civil and human rights during FISC proceedings. This is with good reason — recent revelations have shown that there is currently a dearth of procedural fairness. While the FISC’s operational procedures lack transparency, from the little we know today, a Department of Justice lawyer submits an application for an order, and the Court only hears the government’s position while reaching a decision. At present, nobody in the court is there to challenge the government’s assertions, to demand due process, or stand up for the interests of persons in the US or abroad.

Historically, FISC was intended to be a court that could hear government requests for wiretaps that traditional courts lacked the security clearance to ajudicate. When FISC was limited to hearing these kind of individualized criminal warrants, an ex parte (without one party) proceeding was largely adequate. However even in these “simpler” times the FISC lacked the remedies for malfeasance and miscarriages of justice that exist in regular criminal courts. Today, it is clear that role of FISC has evolved into a vastly different creature. FISC is increasingly being asked to interpret complex statutes for the first time, apply Constitutional protections of due process and freedom of speech to new surveillance technologies and techniques, and determine the lawful limits of the NSA’s surveillance. In these procedures, an ex parte proceeding where judges hear only from the government lawyers, is wholly unacceptable.

It is well established throughout the history of human politics that absolute power corrupts. That is why the United States imposes judicial review over the executive branch. Central to this is an adversarial process in which the government must explain and justify its reasons for undermining human rights. The complex questions facing the FISC courts today require the creation of a special advocate’s office, consisting of independent lawyers empowered to challenge the government’s positions on issues affecting the public’s right to privacy, freedom of expression, and other rights protected by the US Constitution and international law. The special advocate is not a novel creation: dozens of countries have special advocates or ombudsman offices, which are often characterized as a “national human rights institution” and charged with protecting rights and privileges.

For example, Canadian and UK special advocates argue in deportation proceedings for suspected terrorists; Australia has ombudspersons charged with resolving complaints regarding particular industries, such as telecommunications; and many countries have a commissioner dedicated to protecting the right of certain demographics, like Norway’s children’s rights commissioner.

Best practices for a Special Advocate
To ensure the effectiveness and impartiality of the special advocate’s office, Access recommends the following:

1. Ensuring an independent voice: The FISA special advocate cannot be a government lawyer, “captured” by the prospect of career advancement or partisanship. As both the President and PCLOB recommended, the special advocate should be pulled from a pool of independent attorneys, such as a firm or public interest group specially designated to supply special advocates. PCLOB should be charged with overseeing this hiring process, as the Review Group considered, and hiring should be done in a transparent, independent manner.

2. Ensuring technical expertise: Special advocates should have experience in national security and privacy litigation, preferably representing the interests of digital communications users and at-risk groups such as political activists, journalists, and others profiled by security forces.

3. Ensuring fair representation: The special advocate should be tasked with representing the privacy interests of both US-persons and non-US-persons, and both the US Constitution and the International Convention on Civil and Political Rights should factor into their determinations.

4. Ensuring transparency: The FISC special advocate would also play a role in increasing FISC’s transparency. Given its special access to FISC opinions, it will be in a unique position to identify opinions for declassification — an integral element of FISC reforms recommended by PCLOB and the President’s Review Group.

5. Ensuring accountability: Transparency must also extend to the activities of the special advocate. This will provide the accountability needed to ensure that the special advocate fulfils his or her purpose, namely, to represent the interests of those affected by US government surveillance — in other words, virtually everyone on the planet. To this end, the list of special advocates should be public, as is the case in Canada. Finally, the government should generate a public report including statistical data and analysis of the program’s effectiveness. PCLOB suggested the Attorney General handle the report, but as an independent agency, PCLOB would likely produce a more neutral report.

6. Ensuring full access: The President’s Review Group’s suggested the special advocate be summoned on the discretion of the FISC judge, ostensibly for cases with novel questions or with wide-reaching impact. Under the Review Group’s recommendations, the special advocate would also receive docket information and be allowed to join the proceedings on their own initiative (without an invitation). Neither President Obama nor the PCLOB recommended granting the special advocate’s offices inherent authority to join proceedings, a power Access sees as essential to the effective execution of the special advocate’s mandate.

7. Ensuring due process: Since special advocates will intervene in cases with significant legal questions, they must be able to appeal FISC decisions to the FISCR and FISCR decisions to the Supreme Court. It may also be worthwhile to explore how FISCR decisions could be appealed to a Federal Circuit Court — rather than the Supreme Court, which only selects a few cases to rule on — although obtaining the requisite security clearances may be an issue.

Technical assistance and FISC appointments
FISC’s shortcomings go beyond the lack of an adversarial process, and include a frequent lack of understanding regarding the technological realities at hand. US Judges aren’t required to have any specific expertise or knowledge of technology, and there’s no reason to think FISC judges are any exception. FISC judges have no special technological background and they dedicate only a portion of their time hearing FISC cases.

Both PCLOB and the President’s Review group recognized the need for technical guidance. Their suggestions varied — ranging from hiring special masters to advise on technology issues, to using a PCLOB technologist, and increasing the use of third-party attorneys either to provide amicus briefs or to directly advise judges for significant opinions. There’s no reason the Court should be limited to one option. These choices aren’t mutually exclusive and when privacy violations are at stake, especially violations on a global scale, the authorizing judges need to understand the full implications of their opinions. To ensure the best informed judicial process and greatest protection of human rights, Access recommends the creation of an Office of the Special Advocate with a diversity of expertise and perspectives on staff, who could be tapped as needed to provide technical guidance to the FISC and FISCR.

FISC judges lack not only technical knowledge, but a diversity of viewpoints. The Chief Justice of the Supreme Court appoints all FISC judges. Current Chief Justice John Roberts strongly favors judges with executive branch backgrounds, so it should be no surprise that FISC opinions broadly interpret executive power. The President’s Review Group’s recommended rotating appointment through the nine Supreme Court Justices so that they take turns appointing FISC judges. We agree that to be an effective institution FISC judges must have diverse backgrounds and their appointment process needs to change. As Access noted in our submission to a public consultation PCLOB held in advance of writing this report, presidential appointment or rotating appointment by the chief judge of each circuit could achieve that outcome.

To date, we have only scratched the surface of FISC reform, let alone reform to US surveillance practices. Incorporating greater protection of due process and protection of privacy, comprehensive policy will take time and demand creative solutions. Yet, the proposed changes to FISC, including the introduction of a special advocate, are key to a true reform process. Both US citizens and non-US persons impacted by the FISC deserve to share in the certainty that a secret court using secret law in isn’t undermining their human rights.