The American legal system has been on display this summer; our televisions, newspapers, and social media feeds dominated by high profile trials and arraignments, particularly here in Boston, as well as monumental Supreme Court decisions. Despite the many difference in cases, it was likely taken for granted that every defendant and every side had counsel to argue on his behalf. Every defendant had an advocate to counter the charges of the other side.
The right to legal counsel is enshrined in the Bill of Rights, making our legal system adversarial by design. The presence of legal adversaries to argue both sides in court through zealous representation maximizes the ability of our judges and juries to render informed and fair decisions. Yet despite the near universal understanding of this basic right, one defendant has been left without a courtroom advocate: the American people.
As the recent revelations about the National Security Agency have made clear, the U.S. Foreign Intelligence Surveillance Court (FISC) has essentially become a rubber stamp for government intelligence services. The Department of Justice reports that the FISA Court approved 1,789 surveillance applications in 2012 without denying a single one. The federal judges empowered to authorize warrantless wiretapping, physical searches, and the collection of massive domestic telephone and Internet data are required to remain impartial while they hear arguments from only one side — agents of the federal government seeking broad powers to secretly nullify the privacy rights of American citizens. In this court, the American people have no defense counsel, and can present nothing to counter the arguments of government agents. The FISA system runs so contrary to the legacy of the American legal system that even former FISA Judge James Robertson recently testified to the Privacy and Civil Liberties Oversight Board that, “this process needs an adversary.”
Our national interest in informed judicial decisions and the preservation of American civil liberties demands that we introduce a legal advocate to argue the other side of the case, the side of ordinary Americans, in FISA Court. Towards this end I have introduced a bill to establish an independent Privacy Advocate General to present legal and constitutional arguments in opposition to government FISA requests.
To ensure independence from the executive branch, the advocate would be jointly appointed by the chief justice of the Supreme Court and the most senior associate justice selected by a president from a different party. In addition, the bill remains mindful of our paramount concern for national security by allowing the FISA Court, in the event that the government is appealing the denial of a surveillance application, to issue a temporary surveillance order if it determines that exceptional circumstances and compelling evidence exist to justify such surveillance.
Through our right to counsel, our right to confront witnesses, and other core constitutional protections, we can tell our side of the story in court. In doing so, we further safeguard the constitutional rights of all Americans, whose collective interests would be gradually eroded absent vigorous advocacy on their behalf. As noted by constitutional scholar and Harvard Law Professor Laurence H. Tribe, the components of an adversary system of justice remind us “about the sort of society we want to become, and indeed, about the sort of society we are.”
Regrettably, the current FISA Court lacks this defining feature, and a nation that has long recognized the value of an adversarial legal system can rightfully question the accountability of a judicial process that lacks one.
U.S. Rep. Stephen F. Lynch (D) represents Massachusetts’ 8th congressional district.