A number of proposed amendments aimed at reforming the FISA Court envisage a Constitutional Advocate or similar role.  Marty Lederman and Steve Vladeck posted earlier here on Just Security on the constitutional implications of these appointments. My contribution reflects on the benefits and perils of constitutional advocates from a comparative point of view, looking to the experience of the UK over four decades of dealing with violent challengers and harnessing legal tools to that end.

These current FISA Reform proposals include Feinstein-ChamblissLeahy-SensenbrennerBlumenthalSchiff-Carney, and Lynch-Himes.  As related to provisions for an Advocate role, the bills fall roughly into two categories: Special Advocate lawyer and amicus curiae.  Each of the proposals, except Lynch-Himes, provide for the appointment and facilitation of amicus curiae in the FISC proceedings. Whereas the Feinstein-Chambliss proposal is the only outlier that does not create an actual Advocate position. Broadly the substantive proposals would establish an Office of the Constitutional Advocate within the judicial branch of the United States. The Constitutional Advocate would be the head of the Office, appointed by the Chief Justice of the Supreme Court from a list of candidates submitted by the Privacy and Civil Liberties Oversight Board.

The four proposals establishing the Advocate position vary in the details but are substantially similar in moving in the direction of making the FISC more adversarial through the imposition of an Advocate.  All four aim to represent the privacy interests of U.S. citizens, though they vary slightly in the language used to express this. For example, Blumenthal’s proposal focuses on advocacy “in support of legal interpretations that minimize the scope of surveillance and the extent of data collection and retention” and Leahy-Sensenbrenner’s advocacy focus is “in support of legal interpretations that protect individual privacy and civil liberties.” They all propose some capacity to challenge the rulings of the FISC, allow the Advocate access to information—though possibly varying in scope, and provide some support (e.g. staff and resources) to them.  Most notably, one of the largest differences is that the Lynch-Himes proposal appears to mandate the Advocate’s participation in all FISC proceeding, whereas Schiff-Carney’s requires that the FISC appoint an Advocate when dealing with “novel” issues related to the Fourth Amendment. The apparent ordinariness of such a move to require participation in all proceedings may hide the far-reaching implications of these proposed changes, given that most FISC proceedings are now more closely akin to Title III Warrants applications undertaken ex parte. The Leahy-Sensenbrenner and Blumenthal proposals, on the other hand, allow the Advocate to request participation. The name of the Advocate role also varies slightly within these remaining four proposals. Leahy-Sensenbrenner and Blumenthal use the name “Special Advocate.”  Schiff-Carney calls them “public interest advocates.”  Lynch-Himes uses the name “Privacy Advocate General.”

With the appropriate background on the current FISA reform proposals before Congress, we can now turn to the comparative analysis. The UK has long managed the challenge of terrorism in Northern Ireland by law. Proposals for Special Advocates surfaced early with the abandonment of trial by jury for terrorist offenses in Northern Ireland. Thus, non-jury courts were established in Northern Ireland in 1973 upon the recommendation of Lord Diplock to address issues of jury partisanship and jury threats/intimidation in terrorism cases. The Diplock system altered several core protections given to defendants in the established criminal system:

  • even-handedness in the admissibility of evidence as the operation of the voir dire rules under the abandonment of jury trial meant that, in practice, judges were directly exposed to evidence that they may have found to be inadmissible, resulting in convoluted intellectual gymnastics to exclude the information from their minds;
  • a reliance on confessional evidence in the preponderance of cases before the Diplock courts with concurrent allegations of physical and psychological ill-treatment in detention centers undermining overall perceptions of the fairness of trial;
  • limited access to legal counsel through the pre-trial period which became inexorably connected with the process of trial itself; and
  • the overall system altered the traditional Anglo-American adversary system where the lawyers try the case, and the judge plays an umpire role, bringing the practice of the court closer to the European civil law inquisitorial system.

Despite criticism of the overall Diplock court system, the regime was in place until 2007 when it was repealed as one of the dividends of the Northern Ireland peace process. Prior to the 2007 abolition of the Diplock System and return to jury trials, several proposals were developed to ameliorate the perceived legitimacy challenges of the court.

Lord Carlile, the Independent Reviewer of Terrorism Legislation, argued that there should be “a presumption that every indictable case will be tried by jury,” and that if this presumption is rebutted, “the circumstances should be very limited.” His proposals, which introduced the idea of a Special Advocate to enable “normalization” of non-jury trial as ongoing challenges to the legitimacy of the court, proved challenging for the UK government throughout the conflict in Northern Ireland. Carlile proposed a procedure for a non-jury trial that would be applicable in any indictable offense:

“. . . on certification by the prosecution authority, giving reasons to the extent that they can be given without endangering sensitive sources or national security, and

After that authority has obtained the opinion of an independent advocate to be drawn from a security cleared panel (a special advocate), who may be an advocate in any UK jurisdiction, and

Subject to a right of review without the need to obtain permission of the court.”

Review of certification to have a non-jury trial should be reviewed before a judge of the High Court of Northern Ireland, “who should not be the trial judge.” The Special Advocate would attend the hearing–protecting sensitive material “from disclosure to the defendant and his own legal representatives,” yet still ensuring “that [the defendant’s] interests and the broader interests of justice were properly protected.”

The Ministers from the Northern Ireland Office declined to incorporate Lord Carlile’s Special Advocates proposal, saying it was “not necessary” because the Ministers’ proposal gives decision-making power to the Director of Public Prosecutions for Northern Ireland (DPP), and the DPP could seek advice if such advice is desired. The DPP’s decision for a non-jury trial is judicially reviewable, under the Ministers’ proposal, so no additional mechanism is needed.

Broader Use of Special Advocates in the UK

The original proposal for Special Advocates arose out of the European Court of Human Rights’ (ECtHR) judgment in Chahal v. United Kingdom. In response, the UK Government incorporated a Special Advocate-type position in their immigration system through the Special Immigration Appeals Commission Act 1997. This was done by appointing “a person to represent the appellant’s interests” in closed proceedings. The Special Advocates position then spread to preventative detention in terrorism cases under the Prevention of Terrorism Act 2005, where “[t]he relevant law officer may appoint a person to represent the interests of a relevant party to relevant proceedings in any of those proceedings from which that party and his legal representative (if he has one) are excluded.” The ECtHR, in A v. United Kingdom, stated that the Special Advocate role could help to counterbalance the advantage to the government in closed proceedings, but noted that this function was meaningless “unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate.”

This ruling led to the “gist” standard in UK law where if the Government “seeks to use secret evidence to justify preventative detention it must, as a minimum, provide that individual with the ‘gist’ of the secret evidence being used.” Special Advocates may also be used “in proscription proceedings, in proceedings concerning financial restrictions, and in proceedings relating to asset-freezing sanctions,” yet it is not clear whether the “gist” requirement is applicable in these settings. The use of Special Advocates has spread to other legal contexts and jurisdictions (including Canada and New Zealand) but has not yet reached the criminal trial context, despite talk of doing so.

Some members of the UK parliament, judiciary, and the vast majority of civil society groups have denounced the use of Special Advocates in closed material proceedings. The overriding concern is the exclusion of the accused from the proceedings and the limitations on communication with the Special Advocate. As Special Advocates are not responsible for those they represent there are ongoing concerns about the quality of representation, and the observers suggest that attempts by individual Special Advocates to uphold the rule of law have been easily undermined by the Government.

One Special Advocate in the UK system pointed out the difficulty in countering the government’s claim that disclosure of certain information would be contrary to the public interest:

“. . . without access to any independent expert evidence, they have no means of gainsaying the Government’s assessment . . . . The result is that, unless the Special Advocate can point to an open source of information in question, Government assessments about what can and what cannot be disclosed are effectively unchallengeable.”

Further concern exists that the Special Advocate system may in fact encourage the Government to become over time less likely to disclose evidence in open proceedings as the use of special advocates legitimizes and enables the procedures to operate on a presumption of legality. So the Special Advocate system appears to be seen by many as analogous to placing a small bandage on a gaping wound; a quick fix which allows Government to ignore the underlying case of injury. Their inclusion may enhance “the measure of procedural justice available to controlled persons” yet cannot “remedy that fundamental defect in the hearing.”

Application to FISA Court Proposal

The core challenge to the use of Special Advocates in the UK is that they are ultimately ineffective at addressing the underlying deficiencies of fair process in the context of the exceptional counter-terrorism system they are located within. Arguably, this being the case in the UK, similar concerns are relevant to transfer elements of this model to the FISA system. One predominant concern in the UK system is that the Special Advocates do not have access to all of the information, whereas the preponderance of current proposals for a Constitutional Advocate before the FISC calls for full disclosure of government information material to the case. That stated, the robustness of the disclosure requirements remain contested because the Executive may simply baulk during proceedings and limit actual disclosure through redaction and because there are remaining constitutional questions as to whether Congress can force disclosure in any event.  The theory of more disclosure in these proposals may not actually deliver in practice.  In the UK the use of Public Interest Immunity Certificates has functioned in parallel with Special Advocates to impose parallel limitations on the access to information in proceedings where security information is technically available but de facto not fully enforceable.  In sum, in both systems, the defendant’s or affected individual’s lack of access to the information is a similar concern.

Regarding the Diplock system, there is some claim that it is distinguishable from the contemporary FISA context. In Northern Ireland, the stated concern in abandoning jury trial was juror intimidation/threats and bias, and replacing the jury for a single judge arguably left the “fundamental adversarial features of the criminal trial . . . intact.” In the FISA context, the main concern is a complete lack of adversarial process and the overall seepage of such exceptional process to the legal system as a whole. While the proposal for the Special Advocate in the Diplock system was mostly related to whether a jury or non-jury trial would be given, the proposals for a Constitutional Advocate de facto operates to enable some form of legal representation in the court room advocating on behalf of the vested rights of targeted individuals.  The attenuated nature of this advocacy is most obvious in the large-scale mass surveillance programs under section 702 of FISA and section 215 of the Patriot Act.  These clearly operate under the general presumption that there is no specific target to the surveillance.  Diffuse targeting might be said to undermine the claim that any individual representation is being undertaken by the Special Advocate.

In my view, this may understate the nature of the representation being advanced and is too narrow a prism to understand how the Special Advocate role ends up functioning in practice.  Inevitably, as in the United Kingdom the role shades to representation.  The analogy to advocacy for those being subject to surveillance without their knowledge is not without practical significance in the absence of other representation.  The proposals in play also recognize that the representation component involved is not conceptually or practically insignificant. Existing language in the Advocate proposals arguably support this  “client” or “defendant” representation nexus.  For example, Blumenthal’s understanding of this advocacy is to “protect individual rights by vigorously advocating before the FISA Court or the FISA Court of Review . . . in support of legal interpretations that minimize the scope of surveillance and the extent of data collection and retention,” and Leahy-Sensenbrenner similarly advocates “in support of legal interpretations that protect individual privacy and civil liberties.”

The merits of “sneaking in” advocacy through the back door should be debated.  The comparative experience in the United Kingdom underscores the essential point that concerns about due process protection, transparency and representation do not go away with the creation of a Special/Constitutional Advocate role. Counter-intuitively the creation of such an office may have the unintended consequence of bringing even greater attention to representation and due process deficits.