I have very little to add to Liza Goitein’s thorough and excellent post from this morning, which explains–quite forcefully in my view–why Judge Saylor’s conclusion that appointment of an amicus was “not appropriate” in the FISC opinion made public last Friday utterly fails to persuade. Indeed, although I (like Liza and Julian) am sympathetic to Judge Saylor’s conclusion on the merits, we may well receive a stark reminder in the next few days of how deeply committed at least some especially prominent federal judges are to the kind of dogmatic textualism that would have caused all kinds of problems if the USA FREEDOM Act were read literally. That we don’t agree with such interpretive methodology doesn’t mean that those arguments don’t need to be heard.
But I wanted to write a brief follow-up to Liza’s post to flag the aspect of Judge Saylor’s analysis that I found most disturbing–his throwaway suggestion that “expense” and/or “delay” might themselves be reasons why appointment of an amicus is “not appropriate.” Judge Saylor expressly declines to rely upon either of these grounds. But lest his colleagues be more inclined in the future, let me briefly explain why neither is a convincing justification under section 401 of the USA FREEDOM Act.
The “expense” prong is easy to dispense with. Nothing in the USA FREEDOM Act requires that the amici be paid–and, indeed, in every other context with which I’m familiar, courts do not pay amici. Thus, whereas Judge Saylor worries that “[w]hether amicus curiae will be compensated, and at what rates, is not specifically addressed in the statute,” it seems quite clear that the shift away from a permanent “special advocate” and toward a court-appointed amicus had, at the very least, the effect of taking the government off of the financial hook. At the very least, expense cannot be a reason not to appoint an amicus until it’s actually an issue, no?
Judge Saylor suggests that delay is a more serious concern, and alludes to the statutory text, which he claims worries about the court’s need to act “expeditiously.” In fact, what section 401 provides is that appointment of an amicus should be “consistent with the requirement of subsection (c) and any other statutory requirement that the court act expeditiously or within a stated time.” In other words, in cases in which there is an express statutory requirement that the court act expeditiously, that requirement might be a reason not to appoint an amicus, especially if appointment would frustrate the statutory requirement. That’s a far cry from not appointing an amicus whenever there is some abstract need to act “expeditiously.” Moreover, even in those cases, it’s not clear to me that it is inconsistent with section 401 for the FISC to provide interim relief to the government without appointing an amicus, and then seek the involvement of an amicus in determining whether the interim relief should become permanent. (In regular courts, this is routinely what happens when, for example, courts issue TROs.)
I don’t mean to get lost in the weeds here; much of this will be worked out, going forward, by the FISC. But Liza’s exactly right that, if this kind of superficial analysis is what we should come to expect from the FISC even after (and under) the USA FREEDOM Act, then that should only underscore why participation of an amicus is so important, even (if not especially) in cases in which the relevant FISC judge concludes to the contrary.