Today, Rep. Adam Schiff (D-CA), a senior Member of the Intelligence Committee, introduced legislation, the Ensuring Adversarial Process in the FISA Court Act. This legislation would allow non-governmental attorneys to participate before the Foreign Intelligence Surveillance Court (FISC) as "Public Interest Advocates" in significant constitutional cases and reviews of major surveillance programs.
"By allowing a public interest advocate to participate in certain cases and advocate on behalf of the privacy interests of the American people, we can strengthen the protection of our civil liberties," said Rep. Schiff. "Even though the FISC's deliberations are necessarily secret in nature, it's vital that the American people have confidence that there are voices within the process arguing forcefully and effectively on behalf of the Fourth Amendment and privacy concerns of ordinary Americans."
The Ensuring Adversarial Process in the FISA Court Act would enable the Privacy and Civil Liberties Oversight Board to appoint a pool of independent, non-governmental attorneys with experience litigating cases implicating privacy interests and Fourth Amendment protections to serve as "public interest advocates." Once selected, an attorney in the pool would be available for appointment by the FISC in cases involving novel constitutional issues or with broad privacy implications for the American people. An independent adversary would be able to challenge arguments made by the government, offer alternative approaches that are more protective of civil liberties, and argue for strong protections for privacy.
Additionally, the legislation would make several other reforms to the FISA Court process, which operates largely out of sight. It would allow for increased opportunities for non-governmental parties and groups to file amicus briefs on issues before the FISC and it would allow independent technical experts to evaluate government programs and provide expert testimony to the FISC.
"An independent voice before the FISC will not only assure that the privacy concerns of Americans are taken into account, but it will also improve the quality of FISA court opinions by giving judges access to contrary views. It may also result in the restructuring of programs to improve privacy safeguards while assuring the government access to information necessary to protect the country," said Schiff.
Schiff has introduced several pieces of legislation to reform the FISA Court to increase transparency and accountability. First, Schiff introduced the "Ending Secret Law Act" which would require the Attorney General to declassify significant Foreign Intelligence Surveillance Court (FISC) opinions, allowing Americans to know how the Court has interpreted the legal authorities created under Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Act. Second, Schiff introduced legislation to require that the 11 judges on the Foreign Intelligence Surveillance Court (FISC) be nominated by the President and confirmed by the Senate. Schiff was also the first to propose that the metadata program be restructured so that the telecommunications companies retain their own data, and the government would only request data connected to a number when it had reason to believe that number was associated with terrorism.