The chief justice of the U.S. Supreme Court should not hold the sole authority to appoint judges to the Foreign Intelligence Surveillance Court, an Obama administration review group said today in a lengthy report that offers reforms to better protect privacy and civil liberties.
The White House release of the 303-page report comes just days after a federal judge in Washington declared that the "almost-Orwellian" National Security Agency bulk collection of billions of phone records is likely unconstitutional. Read the report here.
The report, prepared by Richard Clarke, Michael Morrell, Geoffrey Stone, Cass Sunstein and Peter Swire, offers 46 recommendations, including several that are specific to the surveillance court. The recommendations include the creation of a public interest advocate to present a vantage other than the position of the U.S. Department of Justice; greater disclosure of opinions; and dividing the authority to appoint surveillance court judges among the Supreme Court justices.
FISA APPOINTMENT: Ten of the 11 judges on the surveillance court were appointed to the bench by Republican presidents, the panel noted, and all were named to the FISA court by Chief Justice John Roberts Jr.
"Although the role of a judge is to follow the law and not to make political judgments, Republican-appointed and Democratic-appointed judges sometimes have divergent views, including on issues involving privacy, civil liberties, and claims of national security," the committee wrote. "There is therefore a legitimate reason for concern if, as is now the case, the judges on the FISC turn out to come disproportionately from either Republican or Democratic appointees."
The panel said each justice of the Supreme Court should have the authority to select one or two members of the surveillance court from within the circuit the justice oversees. "This approach would have the advantage of dividing appointment authority among the Court’s nine members and reducing the risks associated with concentrating the appointment power in a single person," the review team said.
PUBLIC ADVOCATE: As things stand now, the surveillance court judges hear from one source—the Justice Department. Proceedings are closed to the public and, for the most part, opinions are secret. Some critics have argued for a public defender of sorts—a lawyer who could give the surveillance judges an opposing view.
"[A]n adversary presentation of the competing arguments is likely to result in a better decision. Hearing only the government’s side of the question leaves the judge without a researched and informed presentation of an opposing view," the review panel said. The public interest advocate, the committee said, "would be to represent the interests of those whose rights of privacy or civil liberties might be at stake."
One "difficult" issue, the review team said, is where the public advocate would be housed. One possibility, the panel said, is to outsource the advocate role to a law firm or to a public interest group "for a sufficiently long period that its lawyers could obtain the necessary clearances and have continuity of knowledge about the intelligence agencies."
Housing the public advocate in the Justice Department, the panel said, "would undermine the independence of the Advocate from the opposing brief writers in the case, who would also be in the same Department." The review team said it was averse to a rotating group of lawyers—a move that "would risk a loss of continuity and knowledge about classified programs."
OPINION DISCLOSURE: Regarding the disclosure of surveillance court opinions, the panel urged greater transparency.
"[I]n order to further the rule of law, FISC opinions or, when appropriate, redacted versions of FISC opinions, should be made public in a timely manner, unless secrecy of the opinion is essential to the effectiveness of a properly classified program."
The panel noted that "there can, of course, be a genuine need for confidentiality, especially when classified material is involved." The committee wrote "there are legitimate limits on disclosure."
Looking at the reform proposals at large, Orin Kerr, in a post over at Volokh Conspiracy, said the panel's recommendations "aren't particularly radical or dramatic." Still, he noted, the proposed changes confront the status quo.