Northern District of Ohio Senior Judge James Carr sat on the Foreign Intelligence Surveillance court, FISC, for 6 years, which means his hand must have gotten pretty darned tired and cramped from stamping approved on all those ex parte government applications. In an op-ed in the New York Times, Judge Carr offers a salve:
Critics note that the court has approved almost all of the government’s surveillance requests. Some say the court is virtually creating a secret new body of law governing privacy, secrecy and surveillance. Others have called for declassified summaries of all of the court’s secret rulings.
In an ordinary criminal case, the adversarial process assures legal representation of the defendant. Clearly, in top-secret cases involving potential surveillance targets, a lawyer cannot, in the conventional sense, represent the target.
Congress could, however, authorize the FISA judges to appoint, from time to time, independent lawyers with security clearances to serve “pro bono publico” — for the public’s good — to challenge the government when an application for a FISA order raises new legal issues.
If you’re like me, just the tiniest bit skeptical, then the wiggly words immediately leap off the page. Is it likely that FISA judges will appoint “independent lawyers,” say like the lawyers defending Gitmo detainees, or lawyers who tend to be on federal judges’ radar? When he says “pro bono,” does he mean without pay or does it refer to their “client”? If these lawyers are appointed “from time to time” in a court that deals with immediate needs, does that mean they won’t be there, up to speed, ready to jump, as applications come in? Is this just for the post-damage big issues, the “secret body of law” stuff that comes after a massive seizure?
During my six years on the court, there were several occasions when I and other judges faced issues none of us had encountered before. A staff of experienced lawyers assists the court, but their help was not always enough given the complexity of the issues.
The low FISA standard of probable cause — not spinelessness or excessive deference to the government — explains why the court has so often granted the Justice Department’s requests. But rapid advances in technology have outpaced the amendments to FISA, even the most recent ones, in 2008.
Much as I can understand how the low standard of probable cause gives rise to many of the problems, adding outside advocates won’t change that. But the more disconcerting aspect of the judge’s argument is that the independent lawyers are needed for those occasions when the judge need help with complex issues.
Having lawyers challenge novel legal assertions in these secret proceedings would result in better judicial outcomes. Even if the government got its way all or most of the time, the court would have more fully developed its reasons for letting it do so.
This makes it sound as if he’s advocating for a new type of law clerk, one inclined perhaps to play devil’s advocate, but it also sounds as if he’s only interested in those instances when the court decides it would be helpful. Does that make the “independent lawyer” really an adjunct of the court? What hubris makes a judge think that he only needs to hear an alternative voice when he decides it’s useful to him?
The point of an adversary system isn’t just to oppose the government’s lawyers arguing the government’s position for the government’s benefit, but to challenge the neutrals to be neutral. The government isn’t there only when the court decides it would be a good idea to hear from them, but to push the government’s agenda. To shackle the government’s adversary by only seeking an appearance when the court decides it could use a hand isn’t any adversary system at all.
That’s not to say that Judge Carr doesn’t have the seeds of an idea, even if some of his details leave much to be desired. The idea of having a real adversary to challenge the government’s, not to mention the judge’s, assumptions on every application has merit. But it needs to be a real adversary, not just when it suits the judges, and not someone who they meet at bar association meetings for cocktails. It needs to be a paid adversary, as this is a job and demands hard work. And it needs to be full-time adversary, as every application should be subject to challenge, because, as Judge Carr notes, the standard of shredding our privacy is so maddeningly low.
And even then, such an independent lawyer will work at a severe disadvantage. While the government will have the facts it chooses to present, the independent lawyer will work blind, with no client to provide contrary facts to dispute the government’s artfully worded claims of guilt and need for intrusion. The government will have all the time it needs to prepare its application; the independent lawyer will work with no time at all. It’s a half-a-loaf solution at best.
Normally, I’m no fan of half-a-loaf fixes. They generally fail to solve anything, but serve to put an end to thought and leave problems festering for the next 20 years, until everybody wakes up again, notices that the fix didn’t work, and starts the next round of “reform.” But given the nature of FISC, the damage being done and the fact that the only real answer is that it shouldn’t exist at all in a free society, a half-baked solution is likely the best we’re going to do.
But even for a partial fix, it has to be real and not just an extra “amicus” when the court feels it would be helpful. Judge Carr has started the ball rolling, and his idea may not be nearly enough to serve the public interest, but it has enough merit to form the basis for a tiny bit of adversarial process in a court that is now as close to a star chamber as possible. It’s a start.