Congressman Stephen F. Lynch today introduced H.R. 2849, the Privacy Advocate General Act of 2013.  Importantly, this legislation would establish an independent Office of the Privacy Advocate General responsible for representing our national interest in safeguarding personal privacy and constitutional protections by presenting adversarial arguments in the United States Foreign Intelligence Surveillance Court, otherwise known as the FISA Court. Through the introduction of an adversarial component to a FISA Court system that currently lacks this defining feature of the American legal system, H.R. 2849 would add greater accountability in the judicial review of electronic surveillance requests made by the Federal Government without compromising our paramount commitment to national security.

As underscored in “The Federal Court System in the United States,” an introductory manual on the American judicial system prepared by the Administrative Office of U.S. Courts for judges in other countries, our judicial process is an adversarial one that serves the purpose of allowing our judges the best opportunity to make a decision based on the full presentation of facts and arguments relating to both sides of an issue.  In particular, “[a]ccording to the American legal tradition, inherited from the English common law, the clash of adversaries before the court is thought most likely to allow the judge or jury to determine the truth and resolve the dispute.” Moreover, the “essential role” of the American judge is “to structure and regulate the development of issues by the adversaries and to make sure that the law is followed and that fairness is achieved.”  

Regrettably, this fundamental adversarial element of the American judicial system is not a feature of the FISA Court system.  Instead, the federal court with primary jurisdiction over requests made by the Federal Government to conduct electronic surveillance under the Foreign Intelligence Surveillance Act of 1978 is not afforded the necessary opportunity to consider the adversarial presentation of arguments and as a result, only hears from one party, the Federal Government, during its deliberations.  As recently noted by former federal district court judge James Robertson, who also served on the FISA Court from 2002 to 2005, the current FISA Court framework “needs an adversary” given that “anyone who has been a judge will tell you a judge needs to hear both sides of a case.”

In order to address the glaring absence of a legal adversary inside FISA Court proceedings, Congressman Lynch has introduced H.R. 2849, the Privacy Advocate General Act of 2013.  “The establishment of an independent Privacy Advocate General to argue the merits of opposition in FISA Court will better ensure that critical judicial decisions that significantly impact American privacy and civil liberties are based on the effective presentation of both sides of an electronic surveillance issue,” said Congressman Stephen F. Lynch.  “By making certain that the FISA Court hears adversarial legal and constitutional arguments relating to a particular surveillance application, H.R. 2849 would also further uphold our democratic tradition of due process of law.”    

Specifically, H.R. 2849 would amend the Foreign Intelligence Surveillance Act of 1978 to establish an independent Office of the Privacy Advocate General.  In the interests of ensuring independence from the executive branch, H.R. 2849 provides that the Privacy Advocate General would be selected by the judicial branch and in particular, jointly appointed for a term of 7 years by the Chief Justice of the United States and the most senior Associate Justice of the United States Supreme Court appointed by a President from a differing political party.  In addition, H.R. 2849 mandates that the Privacy Advocate General will serve as the opposing counsel in FISA Court proceedings and present the merits of opposition, including legal and constitutional arguments relating to the government’s request for surveillance.  H.R. 2849 specifies that in the event that the FISA Court denies a government surveillance application and the government expresses an intent to appeal that decision, the FISA Court may temporarily authorize the emergency employment of electronic surveillance if the Court determines the existence of exceptional circumstances and compelling evidence indicating that such electronic surveillance is necessary.  Lastly, H.R. 2849 also clarifies that the Privacy Advocate General may make a motion for the FISA Court to publish an order, decision, or opinion.   

University of Chicago Law School Professor Geoffrey R. Stone, who has authored several renowned books on constitutional law and written extensively on the subject of FISA Court reform, said of the Privacy Advocate General Act of 2013: "The FISA court was created in 1978 to ensure judicial oversight of national security surveillance. After thirty-five years of experience, it is clear that an important way to improve the operation of the FISA court is to introduce into the process an element of the traditional American adversarial system. By enabling official privacy advocates to present to the court reasons why it should be cautious about acceding too quickly to government demands for additional surveillance authority, this modest but essential proposal will help the court -- and the nation -- strike a more thoughtful balance between the sometimes competing interests of privacy and security."  Professor Stone is the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago Law School.