I think this is a really good idea. The FISA courts only hear one side, which apparently has led to only one request out of thosands in the last few decades that was rejected. Hell of a batting average, but most attorneys could do so if they had no adversary. When you hear only one side, that side almost always wins. If Democratic Congressman Schiff gets his way, no more. There will be two sides.
Schiff’s proposal will require the Privacy and Civil Liberties Board — an agency within the Executive Branch that is supposed to monitor the balance between anti-terror policies and civil liberties — to create a pool of attorneys with experience in Fourth Amendment or national security law to argue the side of the public when the government requests a surveillance warrant. Under the proposal, the FISA court would be required to appoint a lawyer to act as a kind of “public advocate” for cases that would have broad constitutional implications.
“What we have in mind is to use the Privacy and Civil Liberties board to generate a pool of attorneys, in consultation with the Justice Department, that will be cleared and can provide a contrary view in significant FISA court cases,” Schiff told me today. “The court will have the benefit of hearing contrary views and contrary case law.”
“These attorneys that would have the same access to classified material and same right of appeal as would the government’s attorneys,” Schiff continued.
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“There has to be a mechanism to ensure the presentation of contrary views,” Schiff continued. “If it is entirely left to the FISA court there won’t be a lot of public confidence in it.”
The Plum Line: Reform of NSA surveillance is probably inevitable
I think this is a no-brainer. At a minimum, a FISA court needs to have adversarial proceedings.