Critiquing FISA Reforms

I ended up testifying again on FISA reform yesterday, this time to Senate Judiciary.  While mostly repeating my past testimony, I added a critique of two recent proposals for reforming FISA:

One idea is to declassify FISA court opinions. Another is to appoint outside lawyers with security clearances who can argue against the government.  The problem with these proposals is that they’re not likely to persuade the FISA doubters that the law protects their rights. But they are likely to put sources and methods at greater risk.

Declassification of the FISA court opinions already happens, but only when the opinion can be edited so that the public version does not compromise sources and methods. The problem is that most opinions make law only by applying legal principles to particular facts.  In the FISA context, those facts are almost always highly classified, so it’s hard to explain the decision without getting very close to disclosing sources and methods. To see what I mean, I suggest this simple experiment. Let’s ask the proponents of declassification to write an unclassified opinion approving the current section 215 program – without giving away details about how the program works. I suspect that the result will be at best cryptic; it will do little to inspire public trust but much to spur speculation and risk to sources and methods.

What about appointing counsel in FISA matters?  Well, we don’t appoint counsel to protect the rights of Mafia chieftains or drug dealers.  Wiretap orders and search warrants aimed at them are reviewed by judges without any advocacy on behalf of the suspect.  Why in the world would we offer more protection to al Qaeda?

I understand the argument that appointing counsel will provide a check on the government, whose orders may never see the light of day or be challenged in a criminal prosecution.  But the process is already full of such checks.  The judges of the FISA court have cleared law clerks who surely see themselves as counterweights to the government’s lawyers.  The government’s lawyers themselves come not from the intelligence community but from a Justice Department office that sees itself as a check on the intelligence community and feels obligated to give the FISA court facts and arguments that it would not offer in an adversary hearing.  There may be a dozen offices that think their job is to act as a check on the intelligence community’s use of FISA:  inspectors general, technical compliance officers, general counsel, intelligence community staffers, and more.  To that army of second-guessers, are we really going to add yet another lawyer, this time appointed from outside the government?

For starters, we won’t be appointing a lawyer.  There certainly are outside lawyers with clearances. I’m one. But senior partners don’t work alone, and there are very few nongovernment citecheckers and associates and typists with clearances. Either we’ll have to let intercept orders sit for months while we try to clear a law firm’s worth of staff – along with their computer systems, Blackberries, and filing systems – or we’ll end up creating an office to support the advocates.

And who will fill that office? I’ve been appointed to argue cases, even one in the Supreme Court, and I can attest that deciding what arguments to make has real policy implications. Do you swing for the fences and risk a strikeout, or do you go for a bunt single that counts as a win but might change the law only a little? These are decisions on which most lawyers must consult their clients or, if they work for governments, their political superiors.  But the lawyers we appoint in the FISA court will have no superiors and effectively no clients.

To update the old saw, a lawyer who represents himself has an ideologue for a client.  In questioning the wisdom of special prosecutors, Justice Scalia noted the risk of turning over prosecutorial authority to high-powered private lawyers willing to take a large pay cut and set aside their other work for an indeterminate time just to be able to investigate a particular President or other official.  Well, who would want to turn over the secrets of our most sensitive surveillance programs, and the ability to suggest policy for those programs, to high-powered lawyers willing to take a large pay cut and set aside their other work for an indeterminate period just to be able to argue that the programs are unreasonable, overreaching, and unconstitutional?

Neither of these ideas will, in my view, add a jot to public trust in the intelligence gathering process. But they will certainly add much to the risk that intelligence sources and methods will be compromised. For that reason, we should approach them with the greatest caution.

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