President Obama's proposal that Congress authorize "outside government" public advocates is doubly useless: (1) Congress legislates almost nothing; and (2) such advocates would be too slow and limited to provide balance between intelligence needs and constitutional protections. The FISA Court can provide the rules.
The rule of law at the heart of our system of ordered liberty depends upon access to the courts in open session to protect constitutional rights. But an intelligence system cannot operate effectively with our traditional adversarial procedures. So we must provide an adequate substitute, a procedure for reliable officials charged with monitoring all aspects of the Foreign Intelligence Surveillance Court. Such officials are not bothersome busybodies. Rather they have the same deep responsibility as the intelligence community to protect our free institutions.
We trust tens of thousands of intelligence officials with our safety. We must have equally powerful -- and trusted -- guardians of our liberties. That balance was obviously absent when the FISA system used almost half a million contractors -- half a million potential Snowdens -- to conduct our intelligence activities. Rank amateurs could have told the people in charge that arrangements that enabled any of those half million contractors to walk off with tens of thousands of intelligence documents required greater care, greater oversight, greater protections, less porous procedures. The officials who operated so loose a system obviously needed more critical eyes than they had deployed. We have yet to be assured that the laxity that made many Snowdens possible has been mended.
Equally we need more vigilance on behalf of constitutional protections than now exist. Public advocates from outside the government, as proposed by the President, will not do the trick. Rather we need fully cleared officials to be on the job, on the site, in the know to give assurance that our traditional protections are being protected and observed to the maximum extent possible. The judges of the FISA court need the assurance that they are getting the full picture.