As readers may recall from prior posts both here and at Lawfare, I’ve been a staunch supporter from the very beginning of the call for more adversarial process before the Foreign Intelligence Surveillance Court (FISA Court or FISC), including through the creation of some kind of “special advocate” who would be allowed to participate before the FISC in at least some proceedings–especially those in which the government is seeking approval for surveillance orders that bear little resemblance to traditional, individualized warrant applications. These proposals have provoked a series of objections, some constitutional, some prudential. I’ve responded to the prudential concerns elsewhere, and Marty Lederman and I tackled some of the constitutional objections in a post last November. But a new white paper prepared by Covington & Burling (and apparently commissioned by AOL) goes even further, and offers a comprehensive summary–and rejection–of potential constitutional concerns that such a position might raise. As it concludes, “the constitutional issues that have been raised can be surmounted,” and so “the policy debate regarding the Public Advocate can proceed unencumbered by the shadow of any alleged constitutional infirmity.”
The paper is available here.