US Congressman Adam Schiff (D-CA) speaks at a town hall meeting on healthcare reform in Alhambra, California, August 11, 2009. Reuters/Danny Moloshok
Wednesday’s narrow vote on the Amash-Conyers measure to defund bulk NSA data collection reflects real momentum in Congress to rein in the government’s massive domestic spying operations. As we’ve noted, there is a fairly large number of bills that would increase transparency of the Foreign Intelligence Surveillance Court, the “secret court” that has not only been approving surveillance requests but apparently creating an entirely new body of law governing what is appropriate for the government to collect.
One of the more interesting ideas being discussed—including by a former FISC judge—is to have an advocate inside FISC to argue against the government when it comes to approving new surveillance programs.
Not having an adversary in court when the government seeks an individual surveillance request is normal in civilian courts—but not when new case law is being created, as is apparently happening at FISC.
Representative Adam Schiff, a Democrat from California and former assistant prosecutor in the US attorney’s office in Los Angeles, is drafting a bill that would do just that.
It has not been introduced yet, but Schiff spoke on the phone with The Nation on Wednesday afternoon shortly before the Amash-Conyers vote. (Schiff voted for the measure.) He shared some extensive details of what is being planned, and called congressional momentum towards modifying domestic surveillance procedures “inexorable.” (This interview has been edited slightly for length and brevity.)
Why do you think the Foreign Intelligence Surveillance Court needs an advocate?
I think the adversarial process generally improves the quality of the work product, so giving the judges the opportunity to hear contrary views, hear contrary case law, I think will strengthen the legal reasoning and the soundness of the opinions from the FISA court. As long as it can be done in a way that protects the classified information, then I don’t see why that should be a problem. There’s really no downside to having the court get the benefit of multiple viewpoints on very important constitutional questions.
Who would appoint this advocate? How would you ensure that he or she is not appointed by the same people who appoint the judges and the prosecutors here?
What we’re looking at, in terms of a bill draft, would give the [Privacy and Civil Liberties Oversight Board, an independent executive branch agency made up of legal experts] a very significant role, and that role might be identifying which issues before the FISA court it believes would benefit from having opposing counsel. They may also have a role in developing a pool of attorneys that could fulfill this function. Those attorneys could be appointed by the FISA court, or they could be appointed by the PCLOB itself. We haven’t figured out some of those logistical questions, but the PCLOB would be a good board to invest with the authority to identify those cases where the court would benefit from contrary views, and also the vetting of attorneys to play that role.