Foreign Intelligence Surveillance Court needs devil’s advocates, law professor says

Many deplore the vast scope of the National Security Agency (NSA) sweep of private phone and electronic communications and question the balance and fairness of Foreign Intelligence Surveillance Court decisions about such activities. Others contend that protection against terrorism requires such activities and that they must remain secret.

Reacting to the public debate, President Obama seeks balance by establishing a spokesperson with the court to advocate for constitutional protection. A recent Huffington Post piece by Merton Bernstein, JD, professor of law emeritus at Washington University in St. Louis, said the move is desirable but not sufficient.

He warned that proposals that require legislation are “a bridge to nowhere.” Improvements, he counseled, can be accomplished by Foreign Intelligence Surveillance Act (FISA) Court rules changes. Further, he suggested, the court should establish a corps of advocates specializing in assessing and advocating measures to protect constitutional values. He suggested as a useful precedent the Roman Catholic Church’s centuries-long use of “the devil’s advocates” to test the adequacy of candidates for sainthood.

Current procedures, he observed, “strike many as unfair. Just as important, such a lopsided procedure cannot be counted on to test vital issues, such as the adequacy of protection against unreasonable search and seizure — the core of the Fourth Amendment. The people who seek to maximize collecting everyone’s phone records and emails are not the right people to also argue to the FISA Court that such activities are constitutional.

Without the prospect of challenge, government intelligence officials, just like anyone else, can become lazy and lax. The combination of possible bias and sloppiness can lead to less than solid intelligence. Supervision by agency personnel, often with similar orientation, relationships and stakes, provides inadequate safeguards. For just such reasons, the federal government has created departmental Inspectors General with the authority to investigate and question agency policies and practices for legality, fairness and efficacy.”

To encourage public trust and improve intelligence results, Bernstein argued, the FISA Court should establish an office with full-time personnel to assess existing and proposed protocols and applications for individual searches to assure maximum observance of constitutional guarantees and for their need and practicability.

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