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Merton Bernstein

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One-Sided FISA Court Procedure Widely Distrusted As Unfair and Unreliable

Posted: 08/20/2013 12:45 pm

President Obama gets the message: When the Foreign Intelligence Surveillance Act (FISA) Court considers any issue presented for decision, including procedural rule, it hears only one side -- the government's. That strikes many as unfair. Just as important, such a lopsided procedure cannot be counted on to test vital issues, such as the adequacy of protection against unreasonable search and seizure -- the core of the Fourth Amendment. The people who seek to maximize collecting everyone's phone records and emails are not the right people to also argue to the FISA Court that such activities are constitutional. (My exhibit No. 1: Department of Justice attorney John Yoo's infamous memo on torture.)

Without the prospect of challenge, government intelligence officials, just like anyone else, can become lazy and lax. The combination of possible bias and sloppiness can lead to less than solid intelligence. Supervision by agency personnel, often with similar orientation, relationships and stakes, provides inadequate safeguards. For just such reasons, the federal government has created departmental Inspectors General with the authority to investigate and question agency policies and practices for legality, fairness and efficacy. Much the same purpose underlies the Federal False Claims Act and the statutory protections for whistle blowers. Keeping administrators honest goes beyond assuring that officials do not dip sticky fingers into the till. It also means adherence to proper procedures and observance of meaningful limitations on power. Similar consideration underlie the many offices of Ombudsman (a Scandinavian term that is unisex) - making sure that officials play fair, smart and efficiently.

At his August 9 press conference, the President proposed to rectify such imbalances by providing "an independent voice in appropriate cases, ensuring that the government's position is challenged by an adversary." That will strike many, as it does me, as a step in the right direction, but an inadequate one.

To encourage public trust and improve intelligence results, the FISA Court should establish an office with full-time personnel to assess existing and proposed protocols and applications for individual searches to assure maximum observance of constitutional guarantees and for their need and practicability. For centuries the Catholic Church assigned canon lawyers as "devil's advocates" to scour the records of candidates for sainthood and contest the arguments made by their proponents. Whatever the efficacy of those advocates, their institutional role suggests an organizational method of promoting fairness and reliability. Such FISA personnel should have a title demonstrative of their useful and honorable function- I nominate "Public Advocate." Every FISA Court proceeding should include a report from these Public Advocates with their assessment of existing and proposed rules, practices and searches. They should have the standing role of presenting the downside of any actions under FISA. From the outset, the very existence of such authority would make government agents careful in what seek to do and how they do and propose to do it.

The President apparently contemplates legislation. In today's climate, that route is a bridge to nowhere. At present Congress is incapable of acting on anything that is or might be made controversial. It probably will take a while to work ourselves out of the Age of Impasse. But the President or Attorney General could petition the FISA Court to establish such positions and authority just as the FISA Court has undoubtedly provided for its other support staff.

To make a fresh start more acceptable to the public and more consistent with our nation's traditional concepts of fairness the FISA Court itself should be petitioned to establish these new balanced arrangements. It surely already has made procedural rules to govern its procedures and decision making processes.

Not only would this improve what FISA and NSA do, it would declare anew to the world that the United States remains dedicated to the rule of law and the Constitution. That would wow the world and possibly diminish the tarnish and resentment resulting from past invasions and meddling with other nations' business. Many believe that did a heap of harm and less good than initially advertised.

 
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