Serious questions shadow President Barack Obama’s proposal to add a public advocate to the secret court that oversees surveillance programs. The public advocate, Obama says, would provide an “independent voice in significant cases” before the Foreign Intelligence Surveillance Court. The details, though, remain sketchy even as some of the administration’s own lawyers wonder about the wisdom of it all.
The questions include: How will the advocates be appointed? What surveillance cases will merit their participation? How much power will they have? And, not least: Does the Constitution allow them?
Obama's proposal echoed ideas that legal scholars and others have raised in recent years.
“There are both practical and legal concerns with a special advocate,” Robert Litt, the general counsel of the Office of the Director of National Intelligence, told the Privacy and Civil Liberties Oversight Board, a government panel, in November.
Obama offered the public advocate proposal, along with others designed to address surveillance and spying controversies, on Friday. A number of the proposals, such as the one for a public advocate, left up to Congress or the Justice Department the job of filling in the blanks. Skeptics abound.
“The advocate proposal is simply a cosmetic attempt to make up an appearance, without substance, of an adversarial proceeding,” said Carl Messineo, the legal director of the Partnership for Civil Justice, a liberal advocacy group.
The nonpartisan Congressional Research Service said in a report last October that the “novel” public advocate proposal raises “several difficult questions of constitutional law” that ultimately might undermine the advocate’s authority. The former chief of the surveillance court, Judge John D. Bates, cautioned lawmakers in a letter last week that a public advocate is “unnecessary and could prove counterproductive in the vast majority” of surveillance court matters.
Working in secret, the court authorizes electronic surveillance or physical searches in cases that involve foreign agents or powers. Until now, it’s been a one-sided process, and investigators nearly always get what they want.
The Obama administration made 6,305 requests for electronic surveillance from 2009 to 2012, according to the court’s annual reports. Only one request was denied outright, though a few others were withdrawn. In about 100 cases the court modified the surveillance orders.
In theory, the new public advocate would create something closer to the conventional courtroom’s clash of adversaries. The idea has some parallels. Twenty-nine states, for instance, have appointed public advocates to represent consumer interests in utility rate cases.
“We think to have someone who’s a dedicated officer designed to protect privacy and liberty interests is a very important safeguard,” Harvard Law School professor Cass Sunstein, a member of a White House advisory panel, told the Senate Judiciary Committee last week.
The proposed public advocate would provide a different perspective for the surveillance court on “novel issues of law and on large questions,” according to a senior administration official who’s familiar with the proposal but isn’t authorized to speak publicly. The official added that the advocate would intervene in cases where the court would be “rendering a judgment that affects a broader privacy equity, whether it’s related to bulk data or whether it’s related to a new type of case or a new type of government effort to pursue a lead that raises a privacy issue.”
A public advocate probably shouldn’t get involved in individual wiretap cases, some experts say. One, former Justice Department intelligence official James A. Baker, warned the privacy panel last year that “you’re going to have to think about how it’s going to impact the ability of the process to move quickly.”
The privacy board is expected to release a report Thursday that sheds further light on surveillance issues. The real decision-making, though, will be up to Congress.
Seventeen Democratic senators back a proposal authored by Sen. Richard Blumenthal, D-Conn., to create a new Office of Special Advocate in the executive branch. The chief judge of the appellate court that oversees the Foreign Intelligence Surveillance Court would appoint the office head.
Rep. Adam Schiff, D-Calif., would have the Privacy and Civil Liberties Oversight Board appoint public advocates for surveillance court cases. A third option, authored by Rep. Chris Van Hollen, D-Md., would have the chief justice of the Supreme Court appoint a new constitutional advocate, housed in the judicial branch.
“I believe this public interest advocate should only be appointed in certain cases involving programmatic requests and novel legal and technical issues,” said Schiff, who’s a member of the House of Representatives Intelligence Committee. “I also believe the advocate must be truly independent and have access to the technical expertise necessary to independently evaluate the government’s arguments before the (surveillance) court.”
Lawmakers must step carefully. For instance, they must ensure the public advocate has the legal standing, or authority, to participate in court proceedings. It’s not enough simply to claim to represent the public, as the Supreme Court noted last year in ruling that opponents of same-sex marriage in California lacked standing to defend the state’s Proposition 8.
“In the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties,” Chief Justice John Roberts Jr. noted in the California case, adding that standing “is not to be placed in the hands of ‘concerned bystanders,’ who will use it simply as a vehicle for the vindication of value interests.’”