Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate

Congressional research reportMar 21, 2014

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Reform of the Foreign Intelligence

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Introducing a Public Advocate

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March 21, 2014

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R43260

Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate

Summary

Recent revelations about the size and scope of government foreign surveillance efforts have

prompted some to criticize the level of scrutiny that the courts—established under the Foreign

Intelligence Surveillance Act of 1978 (FISA)—currently provide with respect to the government’s

applications to engage in such surveillance. In response to concerns that the ex parte nature of

many of the proceedings before the FISA courts prevents an adequate review of the government’s

legal positions, some have proposed establishing an office led by an attorney or “public advocate”

who would represent the civil liberties interests of the general public and oppose the

government’s applications for foreign surveillance. The concept of a public advocate is a novel

one for the American legal system, and, consequently the proposal raises several difficult

questions of constitutional law.

First and foremost is the question of what is the legal nature of the office of a public advocate.

Some may argue that the advocate is functioning as a non-governmental entity, much like a public

defender in an ordinary criminal prosecution, in serving as an adversary to the government’s

position. On the other hand, a public advocate, unlike a public defender, would not be

representing the views of any particular individual, but rather the general interests of society in

ensuring that the government’s foreign surveillance efforts adequately protect the public’s privacy

rights. Given that a public advocate can potentially be deemed an agent of the government,

perhaps as a member of the executive branch, the advocate could be viewed as an office that is

subject to the general requirements of the United States Constitution.

Among these requirements is Article II’s Appointments Clause that requires that “principal

officers” of the United States be appointed by the President and confirmed with the advice and

consent of the Senate and “inferior officers” be appointed by the President, the courts of law, or

the Heads of Departments. Depending on the scope of the authority and the supervisory controls

provided over the FISA advocate’s office, the lawyer who leads such an office may be a principal

or inferior officer of the United States whose appointment must abide by the Appointments

Clause’s restrictions.

Moreover, Article III of the Constitution which vests the judicial power of the United States in the

courts of law over certain “cases” or “controversies” may also restrict the role of a public

advocate. The nature of the FISA courts and their analogous position to how federal courts

approve ordinary search warrants may arguably limit the application of Article III’s case-orcontroversy requirement to FISA proceedings. Nonetheless, Article III typically requires that

parties asking a federal court to exercise its remedial powers on his or her behalf must either

(1) have personally suffered some actual or threatened injury as a result of the putatively illegal

conduct of the other party before the court or (2) be authorized by or have some other connection

to a party that has suffered such an injury to represent that entity. It is at the very least doubtful

that a public advocate has either personally suffered a constitutionally sufficient injury or been

properly authorized by or has a close relationship with an entity that has suffered a

constitutionally sufficient injury. While a more permanent advocate could be potentially viewed

as representing a sovereign interest in ensuring the privacy rights of the general public and could

be viewed as having standing to assert that interest, such a position may raise other constitutional

issues. For example, Article III generally prevents the government from litigating against itself,

making it constitutionally problematic to have an intra-branch dispute over foreign surveillance

resolved by a federal court. In addition, Article II has been interpreted to prevent the

establishment of purely executive functions in independent entities, and, arguably, allowing a

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Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate

public advocate protected by “for cause” removal restrictions to seek judicial relief on an issue of

national security could invade core executive branch prerogatives. In other words, allowing a

public advocate to formally seek judicial relief from an Article III court may present serious

constitutional questions. Instead, a more modest proposal that would allow an advocate to

generally share its views of the law as a friend of the court or amicus curiae is far less likely to

run afoul of the Constitution’s restrictions.

Other constitutional questions are prompted by FISA public advocate proposals. For example,

separation of powers concerns that no branch should aggrandize itself at the expense of a coequal branch may prevent a public advocate from being housed within the judicial branch.

Likewise, Article III of the Constitution may present an obstacle to efforts that would make

appeals of FISA court decisions more frequent. Notwithstanding these concerns, there do exist

constitutionally permissible means to ensure that the executive branch’s foreign surveillance

practices are thoroughly vetted and scrutinized. This report will explore all of these difficult

constitutional issues prompted by the idea of making FISA court proceedings more adversarial.

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Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate

Contents

Introduction...................................................................................................................................... 1

Background on the Concept of a “Public Advocate” ....................................................................... 2

The Role of a Public Advocate ........................................................................................................ 7

Appointment of a Public Advocate .................................................................................................. 9

Appointments Clause............................................................................................................... 10

Is the Public Advocate an Officer of the United States?.......................................................... 10

Would a Public Advocate be a Principal or Inferior Officer? .................................................. 14

Inter-branch Appointments and the Public Advocate .............................................................. 16

Article III Issues Raised by a FISA Public Advocate .................................................................... 17

Morrison and Mistretta “Incidental” Argument ...................................................................... 17

Judicial Power and Article III............................................................................................ 18

Judicial Acts that are “Incidental” to the Judicial Power .................................................. 19

Problems with the Morrison and Mistretta Argument ...................................................... 20

The Traditional Argument and the Role of a Public Advocate ................................................ 21

The Traditional Argument for the Constitutionality of FISA Proceedings ........................ 21

Standing and a Public Advocate’s Individual Capacity ..................................................... 22

Third-Party Standing Doctrine and a Public Advocate ..................................................... 28

Representational Standing and a Public Advocate ............................................................ 29

Constitutional Issues Raised by Housing the Advocate in the Judicial Branch....................... 44

Public Advocate and the Appeals Process ............................................................................... 46

Conclusion ..................................................................................................................................... 49

Contacts

Author Contact Information........................................................................................................... 51

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Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate

Introduction

Recent controversies over the nature of the government’s foreign surveillance activity have

prompted some to argue that the judiciary’s review of government surveillance requests under the

Foreign Intelligence Surveillance Act of 1978 (FISA) should be far more exacting. Accordingly,

some have proposed transforming proceedings before the Foreign Intelligence Surveillance Court

(FISC) and the Foreign Intelligence Surveillance Court of Review, courts created pursuant to

Article III of the Constitution,1 into a far more adversarial process where a designated attorney or

“public advocate” actively argues in opposition of some or all of the government’s foreign

surveillance requests.2 The concept of incorporating a public advocate into FISA proceedings is a

novel one, as “[p]ublic [a]dvocates do not have any identical comparators in the American legal

system.”3 The few analogues to the FISA public advocate proposals that do exist in American law

appear in contexts far removed from the typical FISA proceedings, such as an administrative

agency hearing or in a state court.4 While the novelty of such FISA reforms does not evidence

that the law is constitutionally infirm,5 proposals recommending that a public advocate participate

in the FISA court raise several difficult constitutional questions, the resolution of which will

ultimately depend on the specific language of a particular law. This report will explore the novel

legal concept that is the public advocate and discuss several major constitutional issues

surrounding the FISA advocate idea, highlighting relevant issues to consider, including what is

* This report is an extended and more expanded discussion of an initial report provided on the FISA public advocate

issue in October of 2013. See CRS Report, Introducing a Public Advocate into the Foreign Intelligence Surveillance

Act’s Courts: Select Legal Issues, by (name redacted), (name redacted), and (name redacted) (October 25, 2013).

See United States v. Cavanagh, 807 F.2d 787, 791 (9th Cir. 1987) (Kennedy, J.) (“[Appellant] ... appears to suggest

that the FISA court is not properly constituted under [A]rticle III because the statute does not provide for life tenure on

the FISA court. This argument has been raised in a number of cases and has been rejected by the courts. We reject it as

well.”); In re Kevork, 634 F. Supp. 1002, 1014 (C.D. Cal. 1985) (“The FISA court is wholly composed of United States

District Court judges, who have been appointed for life by the President, with the advice and consent of the Senate, and

whose salaries cannot be reduced. The defendants’ contentions that because of their limited term on the FISA court,

these judges lose their Article III status, has no merit.”); United States v. Megahey, 553 F. Supp. 1180, 1197 (E.D.N.Y.

1180) (same); United States v. Falvey, 540 F. Supp. 1306, 1313 n.16 (E.D.N.Y. 1982) (same); In re Release of Court

Records, 526 F. Supp. 2d 484, 486 (FISA Ct. 2007) (“Notwithstanding the esoteric nature of its caseload, the FISC is

an inferior federal court established under Article III.”).

See infra notes 16, 18-48 and accompanying text. FISA generally establishes procedures for the Government, acting

through the Attorney General, to obtain a judicial warrant for electronic surveillance in the United States to acquire

foreign intelligence information. 50 U.S.C. § 1802(a)(1). “With limited exceptions, the Government may not conduct

electronic surveillance without a court-authorized warrant.” United States v. El-Mezain, 664 F.3d 467, 564 (5th Cir.

2011). Application for a FISA warrant is made to the FISC, which is comprised of eleven district court judges

designated by the Chief Justice of the United States. 50 U.S.C. § 1803(a)(1). The FISC’s rulings are subject to review

by the Foreign Intelligence Surveillance Court of Review, which consists of three judges also designated by the Chief

Justice, whose rulings are, in turn, reviewed by the Supreme Court. 50 U.S.C. § 1803(b). For more on the FISA courts

and its procedures, see CRS Report R43362, Reform of the Foreign Intelligence Surveillance Courts: Procedural and

Operational Changes, by (name redacted) and (name redacted).

Max Havelston, Promoting Justice Through Public Interest Advocacy in Class Actions, 60 BUFFALO L. REV. 749, 799

(May 2012) (noting that skeptics to a proposal for allowing a public advocate to participate in class action lawsuits

might object because the idea is “based around the creation of an entity that is unlike any that our legal system has

recognized.”).

Id. at 799-800 (noting that certain public advocates have been employed by the U.S. International Trade Commission

and in certain state regulatory and civil proceedings).

See Mistretta v. United States, 488 U.S. 361, 385 (1989) (“Our constitutional principles of separated powers are not

violated, however, by mere anomaly or innovation.”); but see Railroad Retirement Bd. v. Alton R. Co., 295 U.S. 330,

346 (1935) (“By the same token, the fact that a given law ... is efficient, convenient, and useful ... standing alone ... will

not save it if it is contrary to the Constitution.”); INS v. Chadha, 462 U.S. 919, 944 (1983).

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Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate

the legal role of a public advocate; how a FISA advocate can be constitutionally appointed; and

whether employing a public advocate before a federal court adheres to the demands of the United

States Constitution.

Background on the Concept of a “Public Advocate”

An underlying principle of the Anglo-American legal system is the adversarial process, whereby

attorneys gather and present evidence to a generally passive and neutral decision maker.6 The

basic assumption of the adversarial system is that a “sharp clash of proofs presented” by opposing

advocates allows a neutral judge to best resolve difficult legal and factual questions.7

Nonetheless, there are rare exceptions to the adversary method wherein a court allows only one

party to address the court without opposition. Such ex parte proceedings typically exist in the

context of pretrial criminal procedure.8 For example, the only parties allowed to be present in a

grand jury proceeding are the jurors, prosecutor, witnesses, and a court stenographer,9 and an

authorized magistrate can issue a search warrant upon the request of an attorney for the

government.10 In this vein, FISA proceedings are also primarily ex parte in nature, as the FISC is

authorized to issue orders approving of electronic surveillance,11 certain physical searches,12 the

use of a pen register or a trap and trace device,13 or the access to certain business records for

foreign intelligence and international terrorism investigations14 upon a proper showing made in an

application by a federal officer.15

In the wake of the recent revelations regarding the size and scope of the government’s foreign

surveillance activities, lawmakers and others have suggested transforming FISA proceedings such

that the process is more adversarial in nature.16 Critics of the current FISA proceedings have cited

See STEPHEN LANDSMAN, THE ADVERSARY SYSTEM: A DESCRIPTION AND DEFENSE 2-3 (1984).

Id.; see also Baker v. Carr, 369 U.S. 186, 204 (1962) (“[C]oncrete adverseness ... sharpens the presentation of issues

upon which the court so largely depends for illumination of difficult constitutional questions[.]”); see also Franks v.

Delaware, 438 U.S. 154, 168 (1978) (“The usual reliance of our legal system on adversary proceedings itself should be

an indication that an ex parte inquiry is likely to be less vigorous.”).

See McNeil v. Wisconsin, 501 U.S. 171, 181 n.2 (1991) (“Our system of [criminal] justice is, and has always been, an

inquisitorial one at the investigatory stage ... ”).

See Fed. R. Crim. P. 6(d).

See Fed. R. Crim. P. 41(b).

See 50 U.S.C. § 1804.

See 50 U.S.C. § 1824.

See 50 U.S.C. § 1843.

See 50 U.S.C. § 1861.

It should be noted that not all FISA proceedings are ex parte in nature, as certain government applications and

directives can be challenged by either an electronic communication service provider, see, e.g., 50 U.S.C. § 1881a(h)(4),

or by a criminal defendant against whom the government uses information derived from its foreign intelligence

gathering, see id. §§ 1806(c), 1806(e), 1881e(a).

See, e.g., FISA Court Reform Act of 2013, S. 1467, 113th Cong. (1st Sess. 2013); see also Privacy Advocate General

Act of 2013, H.R. 2849, 113th Cong. (1st Sess. 2013); Orin Kerr, A Proposal to Reform FISA Court Decisionmaking,

THE VOLOKH CONSPIRACY (July 8, 2013), http://www.volokh.com/2013/07/08/a-proposal-to-reform-fisa-courtdecisionmaking/; FISA Improvements Act of 2013, S. 1631, 113th Cong. § 4 (1st Sess. 2013); U.S.A. FREEDOM Act,

H.R. 3361, 113th Cong. § 401 (1st Sess. 2013); LIBERTY AND SECURITY IN A CHANGING WORLD: REPORT AND

RECOMMENDATIONS OF THE PRESIDENT’S REVIEW GROUP ON INTELLIGENCE AND COMMUNICATIONS TECHNOLOGY 203-04

(2013) [hereinafter REPORT OF PRESIDENT’S REVIEW GROUP ON INTELLIGENCE]; Privacy and Civil Liberties Oversight

Board, REPORT ON THE TELEPHONE RECORD PROGRAM CONDUCT UNDER SECTION 215 OF THE USA PATRIOT ACT AND

(continued...)

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Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate

the infrequency of the FISC’s rejections of government surveillance requests17 as evidence that

the lack of an adversarial process has prevented the court from fully and properly scrutinizing the

government’s position.18 While some reject this line of reasoning,19 those who have found the ex

parte nature of FISA proceedings troubling have argued that allowing another attorney to argue in

opposition to the requests of the Department of Justice (DOJ) to conduct foreign intelligence

activity would allow the FISC to better protect civil liberty interests.20

(...continued)

ON THE OPERATIONS OF THE FOREIGN INTELLIGENCE SURVEILLANCE COURT 183-87 (2014) [hereinafter REPORT OF THE

PCLOB ].

For example, the Electronic Privacy Information Center, extracting statistics from a list of annual reports required

under FISA, reports that since the court’s inception the FISC has rejected eleven of over 34,000 FISA applications. See

Electronic Privacy Information Center, Foreign Intelligence Surveillance Act Court Orders 1979-2012, May 4, 2012,

http://epic.org/privacy/wiretap/stats/fisa_stats.html.

See, e.g., Office of Senator Patty Murray, Senator Murray Co-Sponsors Major Legislation To Reform FISA Courts,

press release, August 1, 2013, http://www.murray.senate.gov/public/index.cfm/newsreleases?ContentRecord_id=

a06c2586-06c6-45b9-be23-e22a0ae4f128, (“For example, in its 33-year history, the FISA courts have rejected just 11

out of nearly 34,000 surveillance requests made by the federal government, which raises questions about whether they

provide a meaningful check and balance on government surveillance.”); see generally Judge James Robertson,

Comments before the Privacy and Civil Liberties Oversight Board, Workshop Regarding Surveillance Programs

Operated Pursuant to Section 215 of the USA PATRIOT Act and Section 702 of the Foreign Intelligence Surveillance

Act, July 9, 2013, http://www.pclob.gov/SiteAssets/9-july-2013/Public%20Workshop%20-%20Full.pdf (“[T]he FISA

process is ex parte ... and that’s not a good thing ... anybody who has been a judge will tell you that a judge needs to

hear both sides of a case before deciding.”); ACLU v. Clapper,—F. Supp. 2d—, 2013 WL 6819708 at *27 (S.D.N.Y.

Dec. 27, 2013) (“There is no question that judges operate best in an adversarial system ... [The FISC’s] ex parte

procedures are necessary to retain secrecy but are not ideal for interpreting statutes. This case shows how FISC

decisions may affect every American-and perhaps, their interests should have a voice in the FISC.”); REPORT OF

PRESIDENT’S REVIEW GROUP ON INTELLIGENCE, supra note 16, at 203 (“[T]he FISC is sometimes presented with novel

and complex issues of law. The resolution of such issues would benefit from an adversary proceeding.”).

See, e.g., Robertson, supra note 18, (“The fact – the numbers that are quoted about how many reports – how many

warrants get approved do not tell you how many were sent back for more work before they were approved ... the FISA

process has integrity ... ”); see also Robert Litt, General Counsel, Office of the Director of National Intelligence,

testifying before U.S. Congress, House Judiciary, Crime, Terrorism, and Homeland Security, PATRIOT Act

Reauthorization, 112d Cong., 2d Sess., March 11, 2011 (“FISA is not a rubber stamp but gives a searching review to

each application that comes before it and often requires changes in modification ... [i]n addition FISA applications get

extensive high level review within the executive branch even before they are submitted to the court.”); see also Stewart

A. Baker, Partner with Steptoe & Johnson LLP, testifying before U.S. Congress, Senate Judiciary, FISA Surveillance

Programs, 113th Cong., 1st Sess. July 31, 2013 (“[T]he process is already full of such checks. The judges of the FISA

court have cleared law clerks who surely see themselves as counterweights to the government’s lawyers. The

government’s lawyers themselves come ... from a Justice Department office that sees itself as a check on the

intelligence community and feels obligated to give the FISA court facts and arguments that it would not offer in an

adversary hearing ... [t]here may be a dozen offices that think their job is to act as a check on the intelligence

community’s use of FISA.”); The Honorable John D. Bates, Director of the Administrative Office of the United States

Courts (in “consultation with the current Presiding Judges of the [FISC] and the Foreign Intelligence Surveillance

Court of Review ... as well as with other judges who serve or have served on those courts”), Comments of the Judiciary

on Proposals Regarding the Foreign Intelligence Surveillance Act 7 n.7,(Jan. 10, 2014), available at

http://www.judiciary.senate.gov/resources/documents/113thCongressDocuments/upload/011413RecordSubGrassley.pdf (“Recent disclosures by the FISC and the Executive Branch have done much to dispel the misperception

that the FISC ‘rubber stamps’ government requests.”).

See Senator Richard Blumenthal, Blumenthal Applauds President Obama’s Support for Special Advocate in FISA

Courts, press release, August 9, 2013, http://www.blumenthal.senate.gov/newsroom/press/release/blumenthalapplauds-president-obamas-support-for-special-advocate-in-fisa-courts (“[T]he Constitution needs a zealous advocate.

My legislation would empower ... an advocate to protect precious Constitutional rights if threatened by government

overreaching, and thereby strike a critical balance that serves the interests of both liberty and security.”); see also

REPORT OF PRESIDENT’S REVIEW GROUP ON INTELLIGENCE, supra note 16, at 204 (“We recommend that Congress

should create a Public Interest Advocate, who would have the authority to intervene in matters that raise such issues.”);

(continued...)

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Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate

Proposals on the public advocate issue have varied, even with respect to the title of the attorney

who would be charged with opposing the government’s surveillance requests. For example, such

an office has been referred to as the “Special Advocate,”21 the “Privacy Advocate General,”22 the

“Public Advocate,”23 the “Constitutional Advocate,”24 a “public interest advocate,”25 or an

“ombudsman.”26 Beyond nomenclature, ideas for enhancing the adversarial nature of FISA

proceedings have differed in structure. Several proposals envision having an office of a public

advocate as part of the executive branch, either as a wholly new “independent” agency27 or as a

part of an existing agency, such as within the DOJ’s National Security Division.28 In contrast,

others have suggested establishing the office of a public advocate as an independent entity within

the judicial branch,29 perhaps akin to the structure of Federal Public Defender Organizations that

exist in many federal judicial districts in aid of providing criminal defense representation.30

(...continued)

REPORT OF THE PCLOB, supra note 16, at 184; Patricia L. Bellia, Brave New World: U.S. Responses to the Rise in

International Crime, 50 VILL. L. REV. 425, 475-76 (2005) (“In terms of legitimacy, the benefits of having securitycleared opposing counsel argue before the FISC are obvious: doing so would ensure that, despite the secrecy of the

FISA process, concerns about FISA’s application in particular factual contexts were fully aired. Moreover, use of

opposing counsel would relieve any pressure on both OIPR and the FISC itself to act as “devil’s advocate” by narrowly

interpreting the statute.”). Others have voiced policy concerns with respect to the FISA advocate proposal. See

generally Hearing on Examining Recommendations to Reform FISA Authorities before House Permanent Select

Committee on Intelligence, 113th Cong., 1st Sess. 16-17 (2013) (statement of Steven G. Bradbury, former Asst. Att’y

Gen., Office of Legal Counsel), available at http://intelligence.house.gov/sites/intelligence.house.gov/files/documents/

Bradbury10292013.pdf (“Moreover, if done in a constitutional form, introducing such an advocate position would not

likely achieve the meaningful benefits that proponents hope for.”); see also Bates, supra note 19 (“The participation of

a privacy advocate is unnecessary and could prove counterproductive in the vast majority of FISA matters.... ”); The

Honorable Bruce M. Selya, quoted in Khin Su, Federal judge speaks on intelligence, surveillance, The Brown Daily

Herald, Feb. 11, 2013, available at http://www.browndailyherald.com/2014/02/11/federal-judge-speaks-intelligencesurveillance/ (“I think it’s an awful idea ... [an alternative voice would slow down the process and result in] no real

gain.”). These concerns, however, are outside the scope of this report, which focuses on the legal implications of a

FISA advocate proposal.

FISA Court Reform Act of 2013, S. 1467, 113th Cong. § 3(a) (1st Sess. 2013); see also U.S.A. FREEDOM Act, H.R.

3361, 113th Cong. § 401 (1st Sess. 2013).

Privacy Advocate General Act of 2013, H.R. 2849, 113th Cong. (1st Sess. 2013) § 901(a).

See Merton Bernstein, One-Sided FISA Court Procedure Widely Distrusted as Unfair and Unreliable, August 20,

2013, http://www.huffingtonpost.com/merton-bernstein/onesided-fisa-court-proce_b_3785797.html.

Intelligence Oversight and Surveillance Reform Act, S. 1551, 113th Cong. § 402(b) (1st Sess. 2013).

Ensuring Adversarial Process in the FISA Court Act, H.R. 3159, 113th Cong. § 2(a) (1st Sess. 2013); see also REPORT

OF PRESIDENT’S REVIEW GROUP ON INTELLIGENCE, supra note 16, at 204.

See Greg Nojeim, Center for Democracy and Technology, Comments before the Privacy and Civil Liberties

Oversight Board, Workshop Regarding Surveillance Programs Operated Pursuant to Section 215 of the USA PATRIOT

Act and Section 702 of the Foreign Intelligence Surveillance Act, July 9, 2013, http://www.pclob.gov/SiteAssets/9-july2013/Public%20Workshop%20-%20Full.pdf.

See FISA Court Reform Act of 2013, S. 1467, 113th Cong. § 3(a) (1st Sess. 2013); see also Privacy Advocate General

Act of 2013, H.R. 2849, 113th Cong. § 901(a) (1st Sess. 2013); REPORT OF PRESIDENT’S REVIEW GROUP ON

INTELLIGENCE, supra note 16, at 204 & n.166 (suggesting “housing” a public interest advocate into a newly proposed

“independent agency” called the Civil Liberties and Privacy Protection Board and not the DOJ or the judicial branch).

See Kerr, supra note 16 (suggesting establishing a public advocate in the Oversight Section of the National Security

Division of the DOJ).

See Intelligence Oversight and Surveillance Reform Act, S. 1551, 113th Cong. § 402(a) (1st Sess. 2013); see also

Bernstein, supra note 23; Geoffrey R. Stone, Reflections on the FISA Court, July 5, 2013,

http://www.huffingtonpost.com/geoffrey-r-stone/reflections-on-the-fisa-c_b_3552159.html (suggesting creating an

office analogous to a public defender’s office for FISA proceedings).

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Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate

Moreover, with respect to who would appoint the attorney to lead a public advocate’s office, a

variety of government actors, including the President or a Cabinet officer, such as the Attorney

General,31 the Privacy and Civil Liberties Oversight Board (PCLOB),32 or a federal court33 have

been suggested as potential appointing authority. Other proposals, including a recent suggestion

by the President, have eschewed establishing a formal government office to serve in the devil’s

advocate role in favor of requiring the FISC court to appoint private, qualified attorneys to

participate in discrete proceedings.34

Nonetheless, while the various efforts aimed at making FISA proceedings more adversarial in

nature differ, three unifying themes underlie all of the reform proposals. First, proposals for a

FISA public advocate appear to be unified in the mission of the advocate. Specifically, FISA

reform efforts envision a public advocate as providing an “opposing” voice to argue on statutory

or constitutional grounds against applications made by the government under FISA.35 In other

(...continued)

See 18 U.S.C. § 3006A(g)(2)(A) (providing for a “Federal Public Defender Organization” headed by a Federal Public

Defender who is appointed by a “majority vote of the judges of the court of appeals” for a given circuit.); see generally

Steve Vladeck, Making FISC More Adversarial: A Brief Response to Orin Kerr, July 8, 2013, available at

http://www.lawfareblog.com/2013/07/making-fisc-more-adversarial-a-brief-response-to-orin-kerr/.

See Kerr, supra note 16.

Cf. Ensuring Adversarial Process in the FISA Court Act, H.R. 3159, 113th Cong. § 2(a) (1st Sess. 2013). The PCLOB

is an advisory and oversight body that consists of a chair and four additional members, all appointed by the President

with the advice and consent of the Senate. See 42 U.S.C. § 2000ee.

See FISA Court Reform Act of 2013, S. 1467, 113th Cong. § 3(b) (1st Sess. 2013) (providing for an appointment by

the presiding judge of the FISA Court of Review from a list of candidates submitted by the Privacy and Civil Liberties

Oversight Board); see also Privacy Advocate General Act of 2013, H.R. 2849, 113th Cong. § 901(b)(1) (1st Sess.

2013)(allowing for a “joint” appointment by the Chief Justice the Supreme Court and the “most senior associate

justice.... appointed by a President that at the time of appointment was a member of a political party other than the

political party of the President that appointed the Chief Justice.”); Intelligence Oversight and Surveillance Reform Act,

S. 1551, 113th Cong. § 402(b)(2) (1st Sess. 2013) (allowing for appointment by the Chief Justice).

See, e.g., Ensuring Adversarial Process in the FISA Court Act, H.R. 3159, 113th Cong. § 2(b) (1st Sess. 2013)

(requiring the FISC, FISA court of review or Supreme Court to appoint a public interest advocate in certain

proceedings from an approved listed provided by the Privacy and Civil Liberties Oversight Board); REPORT OF

PRESIDENT’S REVIEW GROUP ON INTELLIGENCE, supra note 16, at 204-05 (“Another possibility is to outsource the Public

Advocate responsibility either to a law firm or a public interest group for a sufficiently long period.... ”); President

Barack Obama, White House, Remarks by the President on Review of Signals Intelligence, January 17, 2014,

http://www.whitehouse.gov/the-press-office/2014/01/17/remarks-president-review-signals-intelligence (“To ensure that

the court hears a broader range of privacy perspectives, I am also calling on Congress to authorize the establishment of

a panel of advocates from outside government to provide an independent voice in significant cases before the Foreign

Intelligence Surveillance Court.”); REPORT OF THE PCLOB, supra note 16, at 184 (“To serve this purpose, Congress

should authorize the establishment of a panel of outside lawyers to serve as Special Advocates before the FISC in

appropriate cases. These lawyers would not become permanent government employees, but would be available to be

called upon to participate in particular FISC proceedings.”). While these proposals envision a clear advocacy role for

such an advocate, one commentator has suggested that a private attorney appointed by the FISC would not be

representing a client, but instead would be serving as a consultant to the court and would be compensated pursuant to

Title 5’s provisions on employing temporary or intermittent experts and consultants. See David S. Kris, On the Bulk

Collection of Tangible Things, Vol. 1, No. 4 LAWFARE RESEARCH PAPER SERIES 36 n.151 (September 29, 2013).

See, e.g., Privacy Advocate General Act of 2013, H.R. 2849, 113th Cong. § 901(c)(1) (1st Sess. 2013) (“[T]he Privacy

Advocate General ... shall serve as the opposing counsel with respect to any application by the Federal Government

. . .”); but see REPORT OF THE PCLOB, supra note 16, at 185 (“The Board does not propose requiring the Special

Advocate to serve as the government’s adversary, as opposing lawyers would do in traditional litigation. The Special

Advocate should not be expected to oppose every argument made by the government.”). To the extent the “advocate”

proposal envisions the FISA advocate as merely presenting neutral, non-partisan legal views to the court, such a

proposal is far removed from many of the advocate proposals that envision a formal advocacy role, see supra note 16,

and appears to essentially be – no matter what title such an attorney is given – the addition of a fifth staff attorney for

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Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate

words, a public advocate would “represent the privacy and civil liberties” interests36 of the

general public by advocating for “legal interpretations that minimize the scope of surveillance

and the extent of data collection and retention.”37 Second, public advocate proposals generally

contemplate the advocate taking on a robust role in FISA court proceedings.38 While the various

proposals differ at the margins,39 public advocate measures generally envision the advocate

having a range of responsibilities, such as being able to intervene in ongoing cases,40 brief the

FISC on relevant matters,41 conduct some forms of discovery,42 file motions seeking discrete

forms of relief from the court,43 move the court to reconsider past orders,44 or even appeal an

adverse ruling.45 Finally, FISA reforms establishing a public advocate envision that the advocate

will have some independence from the President and those seeking the approval from the FISC.

While some proposals would provide that the advocate be in an entirely separate division of the

DOJ aimed at providing oversight to the FISA process,46 other proposals establish a public

advocate in an “independent agency” or “independent establishment”47 or the judicial branch48

(...continued)

the FISA court. See Kris, supra note 34, at 38-39. These types of FISA “advocate” proposals are not the focus of this

report.

See Ensuring Adversarial Process in the FISA Court Act, H.R. 3159, 113th Cong. § 2(b) (1st Sess. 2013); see also

REPORT OF PRESIDENT’S REVIEW GROUP ON INTELLIGENCE, supra note 16, at 205 (“The central task of the Public

Interest Advocate would be to represent the interest of those whose rights of privacy or civil liberties might be at

stake.”).

See FISA Court Reform Act of 2013, S. 1467, 113th Cong. § 3(d)(2) (1st Sess. 2013); see also Intelligence Oversight

and Surveillance Reform Act, S. 1551, 113th Cong. § 402(d)(2) (1st Sess. 2013).

See, e.g., Ensuring Adversarial Process in the FISA Court Act, H.R. 3159, 113th Cong. § 2(b)(3) (1st Sess. 2013) (“A

public interest advocate ... shall participate fully in the matter before the court ... with the same rights and privileges as

the Federal Government.”).

For example, H.R. 3159 would allow a public advocate to participate in any “covered court involving a significant

interpretation or construction of a provision” of the FISA or “an issue relating to the fourth amendment to the

Constitution of the United States.” See Ensuring Adversarial Process in the FISA Court Act, H.R. 3159, 113th Cong. §

2(b)(i) (1st Sess. 2013). Other proposals would allow the advocate to take on a broader role, such as being able to

oppose “any application” by the Federal Government with respect to an order or directive under the FISA. See, e.g.,

Privacy Advocate General Act of 2013, H.R. 2849, 113th Cong. § 901(c)(1) (1st Sess. 2013) (“[T]he Privacy Advocate

General ... shall serve as the opposing counsel with respect to any application by the Federal Government . . .”); see

also Intelligence Oversight and Surveillance Reform Act, S. 1551, 113th Cong. § 402(d) (1st Sess. 2013) (providing a

role for the advocate in nearly all stages of foreign surveillance requests before the FISA courts).

REPORT OF PRESIDENT’S REVIEW GROUP ON INTELLIGENCE, supra note 16, at 204.

See FISA Court Reform Act of 2013, S. 1467, 113th Cong. § 4(c) (1st Sess. 2013) (allowing the advocate to

participate as an amicus curiae); see also Intelligence Oversight and Surveillance Reform Act, S. 1551, 113th Cong. §

403(c) (1st Sess. 2013) (same).

See, e.g., Ensuring Adversarial Process in the FISA Court Act, H.R. 3159, 113th Cong. § 2(b)(3)(C) (1st Sess. 2013);

see also Intelligence Oversight and Surveillance Reform Act, S. 1551, 113th Cong. § 402(d)(4) (1st Sess. 2013).

See Ensuring Adversarial Process in the FISA Court Act, H.R. 3159, 113th Cong. § 2(b)(3)(C) (1st Sess. 2013); see

also Intelligence Oversight and Surveillance Reform Act, S. 1551, 113th Cong. § 402(d)(1)(H) (1st Sess. 2013); Kerr,

supra note 16.

See, e.g., FISA Court Reform Act of 2013, S. 1467, 113th Cong. (1st Sess. 2013), § 4(b).

See, e.g., Privacy Advocate General Act of 2013, H.R. 2849, 113th Cong. § 901(d) (1st Sess. 2013); see also FISA

Court Reform Act of 2013, S. 1467, 113th Cong. § 5(a)(1) (1st Sess. 2013); Intelligence Oversight and Surveillance

Reform Act, S. 1551, 113th Cong. § 402(d)(1)(I) (1st Sess. 2013).

See Kerr, supra note 16.

See, e.g., Privacy Advocate General Act of 2013, H.R. 2849, 113th Cong. § 901(a) (1st Sess. 2013); see also FISA

Court Reform Act of 2013, S. 1467, 113th Cong. § 3(a) (1st Sess. 2013). The term “independent,” in and of itself, has no

“set meaning,” as the term can be used to signify agencies that are (1) not placed in “one of the old-line executive

departments,” (2) “Article I” courts, or (3) agencies with structural protections that allow “substantial freedom” from

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with “for cause” removal protections.49 Regardless of the specific structure, public advocate

proposals appear to envision the advocate having nearly unfettered discretion with respect to

types of argumentation and general strategy the advocate could employ.

The Role of a Public Advocate

It is a basic principle of American constitutional law that with one exception50 the Constitution

only applies to the federal government and, via the Fourteenth Amendment and certain other

clauses, to the governments of the states.51 Accordingly, before evaluating the constitutional

implications of including a public advocate in FISA proceedings a threshold issue is to assess

what the exact role of the FISA advocate is as a legal matter and, more specifically, whether the

advocate is a sovereign entity that can be subject to the constraints of the Constitution.52

At first blush, one can argue that an opposition advocate in a FISA proceeding—no matter what

exact form he takes—cannot be considered a government actor, as a public advocate represents

the privacy interests of either the general public or those being targeted. Indeed, as one scholar

noted in another context regarding the concept of a public advocate, the institution itself, in

actively opposing the position of a government agent, is “so different from the traditional three

branches of government” that the advocate “would be like a fourth branch of government, totally

different from anything contemplated by the framers at the time of the ratification of the

Constitution,” and, therefore, free of the constraints of the Constitution.53

Moreover, if one assumes a public advocate is a direct analogue to that of a public defender in a

federal criminal case, the adversarial relationship of the FISA advocate with the government

arguably prevents consideration of the opposition advocate as an instrument of the federal

(...continued)

presidential oversight. See Geoffrey P. Miller, Independent Agencies, 1986 SUP. CT. REV. 41, 50.

See Intelligence Oversight and Surveillance Reform Act, S. 1551, 113th Cong. § 402(a) (1st Sess. 2013). Attorney

David Kris has suggested that Congress could expand the number of legal advisors employed by the FISC and allow

them to be “formally” “appoint[d] ... as an opposition advocate or ‘red team,’ to write the opposing brief in appropriate

cases ... ” See Kris, supra note 34, at 38-39.

See, e.g., FISA Court Reform Act of 2013, S. 1467, 113th Cong. § 3(b)(2)(D) (1st Sess. 2013)(stating that the “Special

Advocate” may be fired “only for good cause shown, including the demonstrated inability to qualify for an adequate

security clearance.”); see also Intelligence Oversight and Surveillance Reform Act, S. 1551, 113th Cong. §

402(b)(2)(D) (1st Sess. 2013) (providing a good cause removal protection for the Constitutional Advocate).

The Thirteenth Amendment is the only constitutional provision that directly regulates the conduct of private parties,

as the amendment is “not a mere prohibition of state laws establishing or upholding slavery, but an absolute declaration

that slavery or involuntary servitude shall not exist in any part of the United States.” See Civil Rights Cases, 109 U.S.

3, 20 (1883). The Twenty-first Amendment indirectly regulates the conduct of private parties by prohibiting the

possession of intoxicating liquors when prohibited by the laws of a given states, functionally providing the states with

the authority to prohibit intoxicating liquor.

See San Francisco Arts & Ath. v. United States Olympic Comm., 483 U.S. 522, 542 (1987).

Whether the office of a public advocate can be described as an arm of the federal government is particularly

important with respect to whether appointment of an attorney to lead that office must comply with the Appointments

Clause of Article II, see infra “Appointment of a Public Advocate,” and with respect to whether the public advocate is

representing the views of a third party or the government for purposes of complying with Article III of the Constitution,

see infra “Third-Party Standing and a Public Advocate.”

See Robert P. Davidow, Criminal Procedure Ombudsman Revisited, 73 J. CRIM. L. & CRIMINOLOGY 939, 952 (1982).

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government.54 Specifically, a public advocate, being bound by the canons of professional

responsibility, must exercise independent judgment on behalf of his client—the public—and

cannot be considered a “servant of an administrative superior”—that is, the government.55 Put

another way, an opponent of the government’s position cannot be converted into its “virtual

agent.”56 In this light, some proposals for including an advocate have described the advocate’s

client as not being the government, but the “people of the United States” in “preserving privacy

and civil liberties.”57

Nonetheless, Congress’s disavowal of a federally created entity’s status as a government agent in

a statute is not controlling.58 After all, as the Supreme Court noted in Lebron v. National Railroad

Passenger Corporation, Congress cannot merely label an entity as “nongovernmental” to “evade

the most solemn obligations imposed in the Constitution.”59 Instead, in evaluating whether an

actor qualifies as a federal entity, courts will look to whether the (1) government created the

entity by special law; (2) government created the entity to further governmental objectives; and

(3) government retains a “permanent authority” to appoint the directors of the newly created

entity.60

With respect to the proposals for creating a permanent and on-going office of a public advocate,

the first and third prongs of the test employed to determine whether an entity functions as a

governmental unit are easily met, as most proposals entail a special law where a government actor

retains the authority to appoint a public advocate.61 The central question is, therefore, whether the

proposals to establish an office of a public advocate are created to further a governmental

objective.62 Courts, applying the three-prong test, have envisioned a broad range of activities

furthering government objectives, including functions that can be provided by private entities

such as library services63 and higher education facilities.64 More broadly, courts have held that a

legally authorized entity that carries out a benefit for the general public is engaging in a

governmental function.65 That description appears to describe the role of a permanent FISA

advocate, as the public advocate would not be seeking private relief from the FISA courts, such as

a damages remedy, but would instead be seeking broad based injunctive or declaratory relief

arising from a violation of the government’s laws.66 Given this, it appears that a permanent office

Cf. Polk County v. Dodson, 454 U.S. 312, 321 (1981).

Id. This is not to say that the adversarial relationship of a public defender with the state precludes a finding of state

action under certain circumstances, as the Supreme Court has found that the determination of whether a public defender

is a government actor for a particular purpose “depends on the nature and context of the function he is performing.” See

Georgia v. McCollum, 505 U.S. 42, 54 (1992). In Polk County, the Court noted that a public defender could act under

the color of law when performing certain administrative functions. 454 U.S. at 325.

Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass’n, 531 U.S. 288, 304 (2001).

See Ensuring Adversarial Process in the FISA Court Act, H.R. 3159, 113th Cong. § 2(b)(3)(B) (1st Sess. 2013); see

also Blumenthal, supra note 20 (“The Special Advocate’s client would be the Constitution and the individual rights of

the American people.”).

See Barrios-Velazquez v. Associcion De Empleados Del Estado Libre Asociado, 84 F.3d 487, 492 (1st Cir. 1996).

See 513 U.S. 374, 397 (1995).

See Hack v. President & Fellows of Yale Coll., 237 F.3d 81, 84 (2d Cir. 2000) (quoting Lebron, 513 U.S. at 400).

See, e.g., Privacy Advocate General Act of 2013, H.R. 2849, 113th Cong. (1st Sess. 2013).

Lebron, 513 U.S. at 400.

Horvath v. Westport Library Ass’n, 362 F.3d 147, 153 (2d Cir. 2004).

Hack v. President & Fellows of Yale College, 237 F.3d 81, 84 (2d Cir. 2000).

Ernst v. Rising, 427 F.3d 351, 377 n.2 (6th Cir. 2005) (quoting Black’s Law Dictionary (7th ed.1999)).

See Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000). It should be noted,

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of a public advocate would likely be considered a governmental entity, as that office would be

created for the broad purpose of ensuring that the privacy interests of the general public are

properly enunciated and respected in foreign intelligence proceedings.67 In this sense, a

permanent public advocate, in continually evaluating the applications before the FISC and in

seeking judicial relief against the approval of a FISA application on behalf of the general public,

would be engaging in the “very essence” of executing the law and would be subject to the

Constitution’s requirements.68 As a public advocate would be representing a generalized interest

divorced from any particular individual’s harm, the FISA advocate’s role is likewise

distinguishable from that of a public defender in an ordinary criminal case.69

Far less clear is whether an otherwise private party appointed temporarily to represent the civil

liberty and privacy interests of the public before the FISC in an isolated case can rightfully be

considered an arm of the government. The Lebron test for determining whether an entity can be

considered part of the government presupposes the existence of a permanently constituted

corporate entity.70 Moreover, the work of an independent party having the “temporary” authority

to participate in a single case arguably is less likely to be seen as being “entwined” with official

government policies or its management or control, leading to a conclusion that a temporary,

private FISA advocate may not be considered a governmental actor.71

Appointment of a Public Advocate

Assuming that a permanent office of a FISA public advocate is an arm of the government and

subject to the general requirements of the Constitution, several constitutional questions are raised

(...continued)

however, that constitutional rights, like the Fourth Amendment’s protection against unreasonable searches and seizures,

are personal in nature. See Rakas v. Illinois, 439 U.S. 128, 133 (1978)

See, e.g., Ensuring Adversarial Process in the FISA Court Act, H.R. 3159, 113th Cong. § 2(b)(3)(B) (1st Sess. 2013)

(noting that a public advocate would represent the “interests of the people of the United States in preserving privacy

and civil liberties ... ”). It should be noted there is some case law that distinguishes the Lebron decision when the

government argues that a quasi-private institution is a governmental body as a means of avoiding a constitutional norm.

See Ass'n of Am. R.R. v. United States DOT, 721 F.3d 666, 676 (D.C. Cir. 2013) (arguing that Amtrak, while viewed

as a public institution in the context of the First Amendment, should be viewed as a private institution when

determining whether the Due Process Clause prohibits delegating legislative authority to Amtrak). In the context of this

report, however, the central constitutional questions focus on whether the public advocate’s quasi-private status could

be used to avoid constitutional obligations, such as the Appointments Clause and, accordingly, its legal status should be

viewed through the lens of Lebron. Id. (“Just as it is impermissible for Congress to employ the corporate form to

sidestep the First Amendment, neither may it reap the benefits of delegating regulatory authority while absolving the

federal government of all responsibility for its exercise. The federal government cannot have its cake and eat it too.”).

See Bowsher v. Synar, 478 U.S. 714, 733 (1986) (explaining that exercising judgment concerning facts as they apply

to a law and interpreting the provisions of the law is a decision that is typically made by an officer charged with

executing a statute).

In other contexts, where a public defender is not representing a client in a criminal proceeding, the Supreme Court

has held that the public defender can be deemed an agent of the state for constitutional purposes. See, e.g., Branti v.

Finkel, 445 U.S. 507, 533 (1980) (holding that a public defender is a state actor when he makes personnel decisions on

behalf of the state).

See 513 U.S. at 396-97 (discussing the historical and legal origins of “Government-created and controlled

corporations.”).

See Brentwood Acad., 531 U.S. at 296; see also Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (“[C]onstitutional

standards are invoked only when it can be said that the [government] is responsible for the specific conduct of which

the plaintiff complains.”).

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by the proposals establishing such an entity. To begin, if a public advocate is “part of the [federal]

government for constitutional purposes,” a congressional establishment of such an agency must

adhere to the requirements of the Appointments Clause of Article II of the Constitution.72

Appointments Clause

The Appointments Clause establishes that the President:

shall nominate, and by and with the Advice and Consent of the Senate, shall appoint

Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other

Officers of the United States, whose Appointments are not herein otherwise provided for,

and which shall be established by Law: but the Congress may by Law vest the Appointment

of such inferior Officers, as they think proper, in the President alone, in the Courts of Law,

or in the Heads of Departments.73

Under the text of the Clause, it is “[o]fficers of the United States” whose appointments are

established by law that are to be subject to Senate confirmation. Thus, principal officers will be

appointed in this manner; however, Congress may choose to vest the appointment of those they

consider “inferior [o]fficers” in either the President, the courts of law, or in the heads of

departments. The Supreme Court has deemed the Appointments Clause to be “among the

significant structural safeguards of the constitutional scheme” and has acknowledged that its

purpose is to “preserve political accountability relative to important government assignments.”74

Is the Public Advocate an Officer of the United States?

The first key question with respect to appointing the public advocate is to determine whether the

advocate would qualify as an officer of the United States, or whether a person is a non-officer, or

employee, whose appointment is not of the kind that invokes the constitutional requirements of

the Appointments Clause. The Supreme Court has long held that the term “‘[o]fficers of the

United States” “does not include all employees of the United States.... Employees are lesser

functionaries subordinate to the officers of the United States.”75 In contrast, the Court has noted

that an office or officer “embraces the ideas of tenure, duration, emolument, and duties, and that

the latter [are] continuing and permanent, not occasional or temporary.”76

The seminal case explicating what being an “officer” of the United States entails is Buckley v.

Valeo, where the Court analyzed whether the appointment of certain members of the eightmember Federal Election Commission (FEC) established by the Federal Election Campaign Act

of 1971 (Act) to oversee federal elections complied with the Appointments Clause. Specifically at

issue was the congressionally mandated composition of the FEC, which was to consist of two

non-voting ex-officio members and six voting members. According to the act, each of the six

voting members were required to be confirmed by the majority of both houses of Congress, with

See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3148 (2010).

U.S. Const., art. II, § 2, cl. 2.

See Edmond v. United States, 520 U.S. 651, 659, 663 (1997).

Buckley, 424 U.S. 1, 126 n. 162. (1976) (per curiam).

United States v. Germaine, 99 U.S. 508, 511-12 (1878) (discussing the term “officers”) (citing United States v.

Hartwell, 73 U.S. (6 Wall.) 385, 393-94 (1867) (discussing the term “office”)).

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two members being appointed by the President pro tempore of the Senate, two members by the

Speaker of the House of Representatives, and two by the President.77 The Court looked to the

powers and duties of the FEC and described them as falling into three general categories:

(1) functions relating to the flow of information—receipt, dissemination, and investigation;

(2) functions with respect to promoting the goals of the act—rulemaking and advisory opinions;

and (3) functions necessary to ensure compliance with the statute—informal procedures,

administrative determinations and hearings, and civil suits.78 Given the nature of the duties

assigned by law to the FEC, the Court concluded that the FEC was exercising executive power, as

the powers that the FEC exercised that were not exclusively “of an investigative and informative

nature” amounted to “authority that cannot possibly be regarded as merely in aid of the legislative

function of Congress.”79 Thus, the Court held that the method of appointment prescribed in the

Federal Election Campaign Act violated the Appointments Clause because certain powers of the

FEC could only be discharged by “Officers of the United States,” who must be appointed in

conformity with the Appointments Clause.

In reaching this conclusion, the Court held that the term “Officers of the United States”

encompasses “any appointee exercising significant authority pursuant to the laws of the United

States.”80 The appointment of such officers, whether principal or inferior, must conform with the

Appointments Clause. The Supreme Court determined that the FEC commissioners, at a

minimum, were inferior officers whose appointment would be subjected to Senate confirmation

or be vested in the President, the courts of law, or heads of departments as prescribed by the

Appointments Clause.81 The Court did not engage in an extended substantive analysis of the

meaning of “significant authority” to distinguish principal officers from inferior officers in order

to determine what mode of appointment would be appropriate for FEC commissioners.

Nonetheless, an opinion from the DOJ’s Office of Legal Counsel (OLC) discusses what are in its

view two essential elements of an office subject to the Appointments Clause.82 OLC stated that it

took the phrase “significant authority pursuant to the laws of the United States,” and other similar

phrases “to be shorthand for the full historical understanding of the essential elements of a public

office.”83 The first element is the delegation by legal authority of a portion of the sovereign

powers of the federal government. OLC described the “delegation of sovereign authority” as

involving “a legal power which may be rightfully exercised, and in its effects will bind the rights

of others, and be subject to revision and correction only according to the standing laws of the

State, in contrast with a person whose acts have no authority and power of a public act or law

absent the subsequent sanction of an officer or the legislature.”84

The second element is that the position must be “continuing,” which OLC described as having

two characteristics. The first is that “an office [for purposes of the Appointments Clause] exists

Buckley, 424 U.S. at 113.

Id. at 137.

Id. at 138.

Id. at 126 (emphasis added).

Id. Subsequent to the decision in Buckley, Congress in 1976 amended the appointments of the six voting members so

that they are appointed by the President, with the advice and consent of the Senate. P.L. 94-283; 90 Stat. 475 (1976).

See Officers of the United States Within the Meaning of the Appointments Clause, 2007 WL 1405459 at *3 (OLC)

(April 16, 2007).

Id. at *10.

Id. at *17 (internal quotations omitted, quoting Opinion of the Justices, 3 Greenl. at 482).

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where a position that possesses delegated sovereign authority is permanent, meaning that it is not

limited by time or by being of such a nature that it will terminate by the very fact of

performance.”85 The second characteristic of “continuing” deals with a temporary delegation of

sovereign authority. Whether such a temporary position qualifies as “continuing” depends on the

presence of three factors. These three factors are:

•

the position’s existence should not be personal, meaning that the duties should

continue even though the person is changed;

•

the position should not be “transient”; and

•

the duties should be more than “incidental” to the regular operations of the

government.86

Pursuant to this analytical rubric, the central issue is whether, under the various proposals for

establishing a formal and permanent adversary in certain FISA proceedings, the FISA advocate

would be exercising “significant authority” on behalf of the United States. Assuming the office of

a public advocate is an arm of the federal government, it appears likely that under many of the

public advocate proposals the advocate would be exercising the sovereign authority of the United

States in a “continuing” manner and therefore would be an “officer” of the United States whose

appointment is subject to the Appointments Clause. Specifically, many of the proposals for

establishing a public advocate envision the advocate having wide, significant, and permanent

authority to litigate on behalf of the privacy and civil liberties interests of the general public87 in

the FISA court and seek judicial relief that would bar certain foreign intelligence gathering by the

executive branch.88 As the Court found in Buckley, the function of having “primary

responsibility” to conduct “civil litigation in the courts of the United States for vindicating public

rights ... may be discharged only by ... ‘Officers of the United States’ within the language of [the

Appointments Clause.]”89 In other words, just as the Buckley Court found that members of the

FEC exercised significant authority insofar as they were empowered to conduct litigation with

respect to the Federal Election Campaign Act of 1971, it may also be concluded that a public

advocate vested with the authority to seek judicial relief against foreign surveillance applications

is such a “significant” function that it can only be conducted by an officer of the United States.90

Id. at *30 (internal quotations omitted).

Id.

See, e.g., Ensuring Adversarial Process in the FISA Court Act, H.R. 3159, 113th Cong. § 2(b)(3) (1st Sess. 2013) (“A

public interest advocate ... shall participate fully in the matter before the court ... with the same rights and privileges as

the Federal Government.”).

See supra “Background on the Concept of a Public Advocate,” at pp. 5-7 (explaining that under many of the “public

advocate proposals contemplate the advocate taking on a robust role in the FISA court proceedings.”). In this sense, the

role of the public advocate under many of the proposals discussed earlier in this report is not solely devoted to

presenting legal arguments to the FISC akin to a traditional amicus curiae.

424 U.S. at 140 (emphasis added); see also Free Enter. Fund., 130 S. Ct. at 3179-80 (Breyer, J., dissenting) (noting

that an officer of the United States includes those with responsibility for conducting civil litigation in the courts of the

United States).

Buckley, 424 U.S. at 140. In this sense, conducting litigation on behalf of the United States and formally invoking a

court’s power to decide issues of public rights differs from the role of an entity that merely informs the court of its

views. See generally Officers of the United States Within the Meaning of the Appointments Clause, 2007 WL 1405459

at *17 (OLC) (April 16, 2007) (noting that an officer exercises authority the effect of which will bind the rights of

others). As such, while the Buckley Court would not allow Congress to appoint individuals to conduct litigation on

behalf of the United States, id. at 138, it is unlikely that the same limitation would apply to individuals who are merely

empowered to serve as in the role of an amicus curiae.

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Indeed, to say that a proposal establishing a public advocate with robust powers to challenge in

federal court executive branch foreign surveillance requests does not establish an office

exercising a significant authority would view the public advocate as a lesser position in the

government than a district court clerk91 or an election supervisor,92 positions the Supreme Court

has viewed as requiring adherence to the Appointments Clause. It should be noted that some

proposals93 that would allow for attorneys to be appointed from the private sector for a single case

would likely not run afoul of the Appointments Clause because of the temporary nature of such a

position.94 Nonetheless, the bulk of public advocate legislation, if enacted, appears to establish an

advocate who would have a broad role that would be “continuing and permanent” and “not

(...continued)

In contrast to the views of several lawmakers who view the role of the advocate as a “critical piece of the [FISA]

reform puzzle,” see Spencer Ackerman, US senators push for special privacy advocate in overhauled FISA court, THE

GUARDIAN, August 1, 2013, http://www.theguardian.com/law/2013/aug/01/fisa-court-bill-us-senate (quoting Senator

Ron Wyden), some proponents of having a FISA public advocate have argued that the position should not be viewed as

possessing “significant” authority. See Marty Lederman and Steve Vladeck, The Constitutionality of a FISA “Special

Advocate,” Nov. 4, 2013, http://justsecurity.org/2013/11/04/fisa-special-advocate-constitution/. To support this

argument, the suggestion has been made that Buckley stands for the narrow proposition that the authority to “bring suits

against private parties” is the sine qua non of being an “officer,” id., with the implication that a public advocate, that

lacks the authority to “commence a lawsuit to compel compliance with federal law,” is not an “officer” under the

Appointments Clause.

While Buckley evaluated a position that did indeed have the power to initiate litigation against a private party, nowhere

in the substance of Buckley is that characteristic of the position made controlling with respect to an understanding of

what an “officer” entails for purposes of the Appointments Clause. Instead, the Buckley Court states “only ... persons

who are ‘Officers of the United States’” can have the “discretionary power to seek judicial relief” and “conduct civil

litigation in the courts of the United States for vindicating public rights” 424 U.S. at 138-140. In other words, having

the authority to initiate litigation on behalf of the United States, while perhaps sufficient, is not a necessary condition to

be an “Officer of the United States.” An alternative view that to exercise “significant authority” on behalf of the United

States, a government litigator must not only have the power to conduct and direct the litigation but must also have

authority to initiate litigation would potentially deem government officials that primarily direct defensive or appellate

litigation to not be “Officers of the United States.” Accordingly, while a measure that merely allows a FISA advocate

to participate as an amicus curiae before the FISA courts may not elevate the advocate to the status of an “officer,” a

proposal that would provide the public advocate with the right to seek judicial relief through discovery, the ability to

seek reconsideration of a particular order, the ability to formally move the court for particular relief, or the authority to

appeal an adverse ruling of a court could arguably be viewed as bestowing the advocate with “significant authority” in

line with Buckley’s holding. And as noted above, see supra “Background on the Concept of a ‘Public Advocate,’” pp.

5-7, several public advocate measures would purport to bestow an advocate with more robust powers than those of an

amicus.

Ex parte Hennen, 38 U.S. (13 Pet.) 225, 258 (1839) (a district court clerk).

Ex parte Siebold, 100 U.S. 371, 397-98 (an election supervisor).

See, e.g., Ensuring Adversarial Process in the FISA Court Act, H.R. 3159, 113th Cong. § 2(b) (1st Sess. 2013)

(requiring the FISC, FISCR or Supreme Court to appoint a public interest advocate in certain proceedings from an

approved listed provided by the Privacy and Civil Liberties Oversight Board); President Barack Obama, White House,

Remarks by the President on Review of Signals Intelligence, January 17, 2014, http://www.whitehouse.gov/the-pressoffice/2014/01/17/remarks-president-review-signals-intelligence (“To ensure that the court hears a broader range of

privacy perspectives, I am also calling on Congress to authorize the establishment of a panel of advocates from outside

government to provide an independent voice in significant cases before the Foreign Intelligence Surveillance Court.”);

REPORT OF THE PCLOB, supra note 16, at 184 (“To serve this purpose, Congress should authorize the establishment of

a panel of outside lawyers to serve as Special Advocates before the FISC in appropriate cases. These lawyers would not

become permanent government employees, but would be available to be called upon to participate in particular FISC

proceedings.”).

Such temporary assignments would likely not be subject to the Appointments Clause. Cf. Auffmordt v. Hedden, 137

U.S. 310, 327 (1890) (“His position is without tenure, duration, continuing emolument, or continuous duties, and he

acts only occasionally and temporarily. Therefore, he is not an ‘officer’ within the meaning of the clause of the

constitution referred to.”).

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occasional and temporary,”95 as such measures would create a FISA advocate that would be a

non-personal position generally charged with continuously reviewing the requests made to the

FISA courts and actively litigating in opposition of such requests.96

Would a Public Advocate be a Principal or Inferior Officer?

Assuming that a public advocate would be an officer of the United States because he or she would

be exercising significant authority pursuant to the laws of the United States, the next question is

whether such an advocate would be considered a principal officer or an inferior officer. The

Appointments Clause requires Senate confirmation for principal officers, but gives Congress the

discretion to provide for the appointment of inferior officers without advice and consent.

Although the Supreme Court has determined various offices to be inferior,97 the High Court has

acknowledged that the case law has until recently “not set forth an exclusive criterion for

distinguishing between principal and inferior officers for Appointments Clause purposes.”98 In

fact, in Morrison v. Olson, the Court observed that “[t]he line between ‘inferior’ and ‘principal’

officers is one that is far from clear”99 and employed a multi-factor test regarding the nature of the

officer’s duties to determine when an officer could be considered either inferior or principal.100 In

dissent in that case, Justice Scalia argued that an officer’s subordination to a principal officer, and

not the nature of his or her duties, should guide the inquiry as to the officer’s status.101 In Edmond

v. United States, the Court appears to have departed from the multi-factor test and adopted Justice

Scalia’s position, holding that “Generally speaking, the term ‘inferior officer’ connotes a

relationship with some higher ranking officer or officers below the President ... [and] whose work

Germaine, 99 U.S. at 511-12.

See, e.g., Privacy Advocate General Act of 2013, H.R. 2849, 113th Cong. § 901(c)(1) (1st Sess. 2013) (“[T]he Privacy

Advocate General ... shall serve as the opposing counsel with respect to any application by the Federal Government

. . .”); see also Intelligence Oversight and Surveillance Reform Act, S. 1551, 113th Cong. § 402(d) (1st Sess. 2013)

(providing a role for the advocate in nearly all stages of foreign surveillance requests before the FISA courts). Some

may argue that with respect to proposals that allow for the advocate to participate in only certain types of proceedings

when called upon by the FISC, see, e.g., Ensuring Adversarial Process in the FISA Court Act, H.R. 3159, 113th Cong. §

2(b)(i) (1st Sess. 2013), the advocate would not be acting as an officer because the role would not be continuing and

permanent. Cf. Germaine, 99 U.S. at 512 (holding that a surgeon appointed by the Commissioner of Pensions was not

an officer because the surgeon was “only to act when called upon by the Commissioner ... in some special case, as

when some pensioner or claimant of a pension presents himself for examination.”). Nonetheless, if the types of cases

that the advocate can appear at are sufficiently broad, the role of the public advocate likely would be less of a fleeting

and temporal role and more of a robust position that is subject to the Appointments Clause. Cf. Aufformordt, 137 U.S.

at 327 (noting that actors that “act[] only occasionally and temporarily” are not an “officer” within the meaning of the

Appointments Clause); see Morrison v. Olson, 487 U.S. 654, 671-72 (1988) (holding that an office with a limited

jurisdiction and limited tenure was an inferior officer).

See Ex parte Hennen, 38 U.S. (13 Pet.) 225, 258 (1839) (a district court clerk); Ex parte Siebold, 100 U.S. 371, 39798 (an election supervisor); United States v. Eaton, 169 U.S. 331, 343, (1898) (a vice consul charged temporarily with

the duties of the consul); Go-Bart Importing Co. v. United States, 282 U.S. 344, 252-54 (1931) (a “United States

Commissioner” in district court proceedings); Morrison, 487 U.S. at 671-72 (an independent counsel).

Edmond, 520 U.S. at 661. It should be noted that the Court did not explicitly overrule Morrison’s analysis of an

inferior officer’s status, discussed infra, but instead stated that Morrison did not “purport to set forth a definitive test

for whether an office is ‘inferior’ under the Appointments Clause.” Id.

Morrison, 487 U.S. at 671-72 (finding that the independent counsel clearly falls on the inferior side of the line).

100

Id. at 671-672 (including factors, such as that the independent counsel being subject to removal by a higher officer,

that she performed only limited duties, that her jurisdiction was narrow, and that her tenure was limited to conclude that

the independent counsel was an inferior officer).

101

See Morrison, 487 U.S. at 719-21 (Scalia, J., dissenting).

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is directed and supervised at some level by others who were appointed by Presidential nomination

with the advice and consent of the Senate.”102 The reasoning in Edmond was again confirmed by

the Supreme Court in Free Enterprise Fund v. Public Company Accounting Oversight Board,103

which concluded that the members of an oversight board were properly appointed inferior

officers because the Securities and Exchange Commission, consisting of five principal officers,

oversaw the board’s conduct and had the power to remove members of the oversight board at

will.104 Thus, in analyzing whether an officer is an inferior one, the Court’s decisions appear to be

centered on the ability of an officer’s conduct to be controlled by an officer who is politically

accountable through a presidential appointment and Senate confirmation.105

With respect to a public advocate, it appears that under many of the proposals for creating a FISA

advocate, the advocate would likely be considered a principal officer. A unifying theme behind all

of the proposals creating an office of the public advocate is to ensure that the advocate is

independent from other entities within the executive branch, who would, presumably, be seeking

an order from the FISA court authorizing foreign surveillance activities.106 Few, if any, proposals

envision any other entity supervising the public advocate by, for example, reviewing the

advocate’s litigation strategies or by editing the submissions of the public advocate before they

are filed with the FISA court. Moreover, several of the proposals would provide the advocate with

“for cause” removal protections,107 such that any other office of government is “powerless to

intervene” if they disagree with the advocate’s decisions, unless the decisions are “so

unreasonable as to constitute ‘inefficiency, neglect of duty, or malfeasance in office.’”108 By

ensuring that the public advocate is autonomous, a law creating an office of a public advocate

would appear to be creating an office headed by a principal officer, as the advocate’s work would

not be “directed and supervised at some level by” another principal officer.109 As a consequence,

in order to ensure the principles of political accountability that underlie the Appointments

Clause,110 there is a substantial likelihood that a reviewing court would find that the Constitution

requires that an autonomous public advocate exercising significant authority in litigating in the

FISA courts be appointed by the President with the advice and consent of the Senate.111

Nonetheless, if the Supreme Court retreats from the stance taken in Edmond and Free Enterprise

Fund and instead embraces the multi-factor approach endorsed in Morrison, an argument could

102

Edmond, 520 U.S. at 662-63. This characterization of inferior officers by the Court presumably would not preclude

the ability of the Congress to vest the appointment of an inferior officer in the President alone as prescribed by the

Appointments Clause.

103

130 S. Ct. 3139, 3162-63 (2010).

104

Id. at 3162. Earlier in Free Enterprise Fund decision, the Court struck down a provision that would have provided

members of the oversight board with “for cause” removal protections on separation of powers grounds. Id. at 3151.

Hence, when assessing the Appointments Clause issue raised in Free Enterprise Fund, the Court found that the

Securities and Exchange Commission “properly viewed ... under the Constitution ... as possessing the power to

remove” members of the oversight board at will. Id. at 3162.

105

Id.

106

See supra “Background on the Concept of a Public Advocate,” at p. 6-7.

107

See, e.g., Intelligence Oversight and Surveillance Reform Act, S. 1551, 113th Cong. § 402(b)(2)(D) (1st Sess. 2013).

108

See Free Enter. Fund, 130 S. Ct. at 3154 (internal quotations omitted).

109

See Edmond, 520 U.S. at 661.

110

Id. at 663.

111

In this sense, viewing the head of the office that would oppose the DOJ’s National Security Division’s applications

before the FISA courts as a principal officer appears to be in line with how the law views the public advocate’s

counterpart—the Assistant Attorney General for the National Security Division, a position that requires a Presidential

appointment and Senate confirmation. See 28 U.S.C. §§ 506 & 507A.

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be made that the public advocate is an inferior officer if the new office, similar to the independent

counsel in Morrison, is created such that the FISA advocate can be removed in some way by a

higher officer, has limited duties, a narrow jurisdiction, and a limited tenure.112

Inter-branch Appointments and the Public Advocate

Assuming that the Supreme Court, in analyzing the appointments question presented by

establishing a public advocate, abandons the Edmond test in favor of the Morrison approach such

that a permanent public advocate could be an inferior officer, an additional issue is raised for

those proposals that would allow the advocate, who is arguably acting in an executive role,113 to

be appointed by the courts of law. Specifically, apart from constitutional questions arising from

Article III of the Constitution or general separation of powers concerns, the Court has recognized

that Congress’s decision to vest the appointment power in the courts would be in violation of the

Appointments Clause if there was some “incongruity” between the functions normally performed

by the courts and the performance of their duty to appoint.114 In Morrison, the Court, relying on

cases allowing for judicial appointment of federal marshals and prosecutors, found no incongruity

with having a court appoint an independent counsel, as “courts are especially well qualified to

appoint prosecutors.”115

Applying these principles, one could argue that the FISA advocate would be analogous to the

independent counsel position in Morrison, in that the position would be one in which the

government is especially concerned with avoiding a conflict of interest with the executive

branch’s prerogatives with respect to foreign surveillance, making appointment by the judiciary

“logical.”116 In addition, especially in light of the legal advisors already employed by the FISC to

critically analyze government surveillance applications,117 the federal courts, especially the FISA

courts, are “well qualified to appoint” a public advocate. In this sense, it would be appropriate for

a court of law to appoint a public advocate housed within the executive branch. On the other

hand, it could be argued that, in contrast to Morrison¸ where the Special Division appointing the

independent counsel was “ineligible to participate in any matters relating to an independent

counsel they have appointed,”118 the proposals allowing a public advocate to be appointed by a

FISA court or even members of the Supreme Court do not appear to have such an ineligibility

provision,119 raising the specter of an “incongruity” between the functions normally performed by

112

Cf. Morrison v. Olson, 487 U.S. 654, 671-72 (1988) (holding that the Special Division of the D.C. Circuit could

appoint the independent counsel because the independent counsel was an inferior officer whose appointment can be

vested in the “courts of law.”).

113

See supra “The Role of a Public Advocate,” p. 9.

114

See Morrison, 487 U.S. at 676 (citing Ex Parte Siebold, 100 U.S. 371, 398 (1880)). The Supreme Court has rejected

the broader argument that Congress wholly lacks the authority to allow for inter-branch appointments. See Morrison,

487 U.S. at 673.

115

See id. at 676-77 & n.13. Other inter-branch appointments upheld include the court appointment of private attorneys

to act as a prosecutor for judicial contempt judgments, Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787

(1987), the court appointment of United States commissioners who exercised certain limited prosecutorial powers, GoBart Importing Co., 282 U.S. at 344, the judicial appointment of federal marshals, Ex parte Siebold, 100 U.S. at 397.

and the judicial appointment of temporary U.S. Attorneys. United States v. Solomon, 216 F. Supp. 835 (S.D.N.Y.

1963).

116

Id. at 677.

117

See Kris, supra note 34, at 38-39.

118

See Morrison, 487 U.S. at 677.

119

See, e.g., Ensuring Adversarial Process in the FISA Court Act, H.R. 3159, 113th Cong. § 2(b) (1st Sess. 2013).

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the FISA court and the appointment power.120 More broadly, in contrast to a federal court’s

general familiarity with criminal law that formed the basis for why the appointment in Morrison

was appropriate,121 federal courts generally “lack ... competence” in the area of national security

and foreign affairs,122 and, accordingly, it could be incongruent with a federal court’s general

competencies to be charged with appointing an individual authorized to litigate on behalf of the

United States to ensure that foreign surveillance efforts respect the public’s right to privacy.123

Article III Issues Raised by a FISA Public Advocate

Apart from issues raised by the Appointments Clause of the United States Constitution, Article III

of the Constitution, which vests the judicial power of the United States in the Supreme Court and

any inferior courts created by Congress, also poses significant legal questions with respect to

proposals creating a FISA public advocate.124 Specifically, some commentators have questioned

whether the judicial power, which extends to “cases” or “controversies,”125 allows the

government, through the National Security Division of the DOJ and the newly created public

advocate, to “literally argue both sides of a legal case,” which casts doubt on whether the court

would truly be overseeing a contested action.126 With this general concern in mind, there are two

central lines of argumentation for how a public advocate can be included in current FISA

proceedings without violating Article III, each of which will be analyzed in seriatim.

Morrison and Mistretta “Incidental” Argument

The first question that should be addressed with respect to Article III concerns over creating a

FISA advocate is whether current FISA proceedings are even subject to Article III’s general

limitations. Arguably, because FISA proceedings are merely “incidental” or “ancillary” to the

120

See Morrison, 487 U.S. at 676.

Id. at 676-77 & n.13.

122

See Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2727 (2010).

123

Many of the proposals would set qualifications for the role of the public advocate, such as having them be one of a

group recommended by the PCLOB. See, e.g, FISA Court Reform Act of 2013, S. 1467, 113th Cong. § 3(b) (1st Sess.

2013) (providing for an appointment by the presiding judge of the FISA Court of Review from a list of candidates

submitted by the Privacy and Civil Liberties Oversight Board). In Myers v. United States, the Supreme Court noted that

“the legislative power” comprehends the authority “to prescribe qualifications for office, or reasonable classification

for promotion, ... provided of course that these qualifications do not so limit selection and so trench upon executive

choice as to be in effect legislative designation.” See 272 U.S. 52, 129 (1926). It has been generally acknowledged that

Congress has broad authority in this area. Executive branch views, as articulated through presidential signing

statements and DOJ opinions have, however, ranged from the assertion that Congress has no such authority to an

acknowledgment of some such authority that lacks clear boundaries. See, e.g., U.S. President (Clinton), “Statement on

Signing the Lobbying Disclosure Act of 1995,” Weekly Compilation of Presidential Documents, vol. 31, December 19,

1995, pp. 2205-2206; 3 Op. O.L.C. 388, 389 (1979); 20 Op. O.L.C. 279, 280-281 (1996).

124

U.S. CONST. Art. III, § 1.

125

Id.

126

See, e.g., Kris, supra note 34, at 38; see also Robert Litt, General Counsel of the Office of the Director of National

Intelligence, Comments before the Privacy and Civil Liberties Oversight Board, Consideration of Recommendations

for Change:The Surveillance Programs Operated Pursuant to Section 215 of the USA PATRIOT Act and Section 702 of

the Foreign Intelligence Surveillance Act, November 4, 2013, available at http://www.pclob.gov/SiteAssets/

PCLOB%20Hearing%20-%20Full%20Day%20transcript%20Nov%204%202013.pdf (“As I said I think there are ...

legal concerns with a special advocate. I think there’s an Article III issue with respect to the standing that a special

advocate would have in the court.”).

121

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federal judiciary’s general Article III powers, they may not be subject to the same requirements as

other Article III judicial proceedings. To fully explore this argument, the nature of the “judicial

power” as defined in Article III must first be assessed.

Judicial Power and Article III

As far back as 1792, the Supreme Court intimated that federal courts are limited to exercising

Article III’s “judicial power,”127 which, in turn, is limited to the adjudication of “cases” or

“controversies.”128 From this case-or-controversy concept, the Court has developed rules of

justiciability such as standing, mootness, and ripeness to delineate which matters federal courts

can hear and which ones must be dismissed.129 These constraints promote separation of powers

interests by ensuring the judiciary does not overstep the bounds of its constitutionally allocated

power and encroach on those of its coordinate branches.130

As part of the case-or-controversy requirement, the Court has generally required litigant

adverseness—a live dispute that is “definite and concrete, touching the legal relations of parties

having adverse legal interests.”131 This “concrete adverseness” helps to “sharpen[] the

presentation of issues upon which the court so largely depends for illumination of difficult

constitution questions[.]”132 It appears that the case-or-controversy requirement does not

necessarily require the presence of two adverse parties, but rather there be adversity in legal

interests. In Pope v. United States, for instance, the Court observed that “[w]hen a plaintiff brings

suit to enforce a legal obligation it is not any the less a case-or-controversy upon which a court

possessing the federal judicial power may rightly give judgment, because the plaintiff’s claim is

uncontested or incontestable.”133

Several cases bear out this principle. In United States v. Johnson, the Supreme Court dismissed a

suit brought by the plaintiff at the behest of the defendant, and in which the defendant had paid

the plaintiff’s legal fees.134 The Court explained that “the absence of a genuine adversary issue

between the parties” precluded resolution of the case.135 In Muskrat v. United States, the Court

was assessing a federal statute which purported to confer authority upon specific litigants to

challenge the constitutionality of a previously enacted statute.136 In dismissing this case, the Court

noted that “there is neither more nor less in this procedure than an attempt to provide for a

judicial determination, final in this court, of the constitutional validity of an act of Congress.”137

127

See Hayburn’s Case, 2 U.S. 409, 410 n.* (1792); United States v. Ferreira, 54 U.S. 40, 48 (1851).

U.S. CONST. art. III, § 2; see United States v. Morton Salt Co., 338 U.S. 632, 641-42 (1950) (“Federal judicial power

itself extends only to adjudication of cases and controversies.... ”).

129

See Allen v. Wright, 468 U.S. 737, 750 (1984).

130

Flast v. Cohen, 392 U.S. 83, 95 (1968).

131

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937); but see United States v. Windsor, 133 S. Ct. 2675

(2013) (holding that the parties had adverse interests even though the parties agreed that the law in question, the

Defense of Marriage Act (DOMA), was unconstitutional).

132

Baker v. Carr, 369 U.S. 186, 204 (1962).

133

323 U.S. 1, 11 (1944).

134

319 U.S. 302, 304 (1943).

135

Id.

136

219 U.S. 346 (1911).

137

Id. at 361.

128

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In deciding that this was not an exercise of the judicial power, and therefore prohibited by Article

III, the Court observed that “judicial power ... is the right to determine actual controversies

arising between adverse litigants, duly instituted in courts of proper jurisdiction.”138 In both cases,

the Court held that the parties did not have adverse legal interests and therefore dismissed the

suits as nonjusticiable.

Judicial Acts that are “Incidental” to the Judicial Power

Notwithstanding the general nature of the judicial power under Article III, it can be argued that

the federal judiciary’s role in FISA proceedings is incidental to the exercise of the general judicial

function and need not independently satisfy the case-or-controversy requirement. This line of

reasoning derives from Morrison v. Olson139 and Mistretta v. United States,140 in which the Court

held that Article III judges may, in certain limited instances, engage in non-adjudicatory, nonadversarial activities without flouting Article III restrictions.

In Morrison, the Court tested the constitutionality of the independent counsel provisions of the

Ethics in Government Act of 1978.141 The act created a Special Division of the U.S. Court of

Appeals for the District of Columbia Circuit, a court presided over by federal judges, appointed

by the Chief Justice. The Special Division was empowered to appoint an independent counsel, set

the parameters of his jurisdiction, receive reports from the counsel, and terminate an independent

counsel when his task was completed.142 In assessing whether these duties exceeded Article III

constraints, the Court looked to analogous duties placed on federal judges, concluding that Article

III judges could conduct certain non-adjudicatory functions:

By way of comparison, we also note that federal courts and judges have long performed a

variety of functions that, like the functions involved here, do not necessarily or directly

involve adversarial proceedings within a trial or appellate court. For example, federal courts

have traditionally supervised grand juries and assisted in their “investigative function” by, if

necessary, compelling the testimony of witnesses. Federal courts also participate in the

issuance of search warrants, and review applications for wiretaps, both of which may require

a court to consider the nature and scope of criminal investigations on the basis of evidence or

affidavits submitted in an ex parte proceeding.143

Adopting a similar line of reasoning, the Court in Mistretta v. United States upheld the

constitutionality of placing Article III judges on the United States Sentencing Commission.144 In

that case, the Court observed that “although the judicial power of the United States is limited by

express provision of Article III to ‘Cases’ and ‘Controversies,’” the Constitution does not

“prohibit[] Congress from assigning to courts or auxiliary bodies within the Judicial Branch

administrative or rulemaking duties that, in the words of Chief Justice Marshall, are ‘necessary

and proper ... for carrying into execution all of the judgments which the judicial department has

138

Id. at 362-63.

487 U.S. 654, 654 (1988).

140

488 U.S. 361, 385 (1989).

141

Morrison, 487 U.S. at 659.

142

Id. at 680.

143

Id. at 681 n.20 (internal citations omitted).

144

Mistretta, 488 U.S. at 412.

139

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power to pronounce.”145 In this vein, the Court, citing to Morrison, noted that Article III courts

can constitutionally perform a variety of functions not necessarily connected to adversarial

proceedings, such as issuing search warrants and wiretap orders.146

In 2002, the Foreign Intelligence Surveillance Court of Review adopted the reasoning from

Morrison and Mistretta to uphold an Article III challenge to the FISA proceedings. In In re Sealed

Case, the Court of Review noted that “[i]n light of Morrison v. Olson and Mistretta v. United

States … there is not much left to the argument … that the statutory responsibilities of the FISA

Court are inconsistent with Article III case-or-controversy responsibilities because of the secret,

non-adversary process.”147 It is unclear, however, whether the Court of Review was (1) asserting

that the ex parte nature of the FISA proceedings did not necessarily mean that the proceedings

were not grounded in adversity or (2) holding, based on Morrison and Mistretta, that FISA

proceedings, like warrant proceedings, are wholly removed from the strictures of Article III

because the proceedings are incidental to and merely carrying into effect the Article III judicial

power.

Assuming the Foreign Intelligence Surveillance Court of Review adopted the latter position, there

is at least some authority for the proposition that just like the role of the Special Division in

Morrison or the role of the United States Sentencing Commission in Mistretta, FISA proceedings

are merely incidental to the federal judiciary’s broader Article III powers and not a formal

exercise of the judicial power. Moreover, once the federal judiciary is engaging in a nonadjudicatory function, none of the typical constraints imposed by Article III, like the doctrines of

standing, mootness, ripeness, and political questions,148 would arguably govern. After all, the

Special Division at issue in Morrison did not need a “ripe” controversy in order to appoint a

special prosecutor to investigate a crime, and an expert testifying before the United States

Sentencing Commission does not have to have “standing” to appear. Accordingly, assuming the

FISA proceedings are merely incidental to core Article III functions, allowing a public advocate

to appear before and obtain relief from the FISA courts would not be constitutionally infirm.

Problems with the Morrison and Mistretta Argument

However, the argument made above is premised on the assumption that FISA proceedings merely

“carry[] into execution all of the judgments which the judicial department has power to

pronounce.”149 The central rationale for why FISA proceedings are incidental to the federal

judicial powers is because such proceedings are directly analogous to a traditional warrant

proceeding, an example of an incidental function of the judicial power provided in Morrison and

Mistretta.150 However, in a traditional warrant proceeding the results can be contested through

some judicial process.151 In this regard, FISA proceedings differ from traditional warrant

procedures. For instance, under Federal Rule of Criminal Procedure 41, an officer executing a

warrant must give a copy of the warrant and a receipt of the property taken to the target of the

145

Id. at 389 (quoting Wayman v. Southard, 23 U.S. (10 Wheat) 1, 22 (1825)).

Id. at 389-90 n.16.

147

In re Sealed Case, 310 F.3d 717, 732 n.19 (FISA Ct. Rev. 2002).

148

Allen v. Wright, 468 U.S. 737, 750 (1984)..

149

Mistretta, 488 U.S. at 389 (quoting Wayman v. Southard, 23 U.S. (10 Wheat) 1, 22 (1825)).

150

See Morrison, 487 U.S. at 860 n.20; Mistretta, 488 U.S. at 389-90 n.16.

151

See TELFORD TAYLOR, TWO STUDIES IN CONSTITUTIONAL INTERPRETATION 86 (1969).

146

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search.152 Additionally, the target may request the return of his property153 and may move to

suppress the evidence if offered at trial.154 As one esteemed commentator noted, with notice and

an opportunity to contest the search, “a case or controversy is made, the issues are appropriate for

judicial determination, and a final judgment can be rendered and reviewed on appeal.”155 In other

words, while a traditional warrant proceeding is incidental to a traditional adjudication by an

Article III court, there is at least some connection that exists between the traditional warrant

proceeding and the judicial power.

Targets of FISA orders, on the other hand, are generally not notified of the surveillance and have

no statutory method of contesting their legality or requesting a return of the things taken unless

gathered material is utilized in a criminal proceeding. And unlike the traditional warrant setting,

information obtained from surveillance under FISA is infrequently used in a criminal prosecution

that could independently satisfy the case-or-controversy requirement.156 In this sense, FISA

proceedings, to the extent they are not adversarial in nature, are engaging the federal judiciary in

a role that is far removed from the traditional Article III functions and are, at least arguably, not

incidental to the federal judicial power.157

The Traditional Argument and the Role of a Public Advocate

Putting to the side the argument that a FISA proceeding is merely incidental to the traditional

Article III powers of a federal court, a second line of argumentation for having a public advocate

included in FISA proceedings stems from a more traditional understanding of the role of Article

III powers that pre-dates Morrison and Mistretta. Specifically, assuming that the FISA

proceedings do satisfy the general requirements of adversity that underlie Article III, a privacy

advocate can participate in the FISC so long as he adheres, as necessary, to certain general

requirements, such as standing, that a party must satisfy to seek relief from a federal court.

The Traditional Argument for the Constitutionality of FISA Proceedings

Relying on the traditional understanding of Article III, the DOJ opined during the late 1970s FISA

debates that the FISA proceedings then under consideration satisfied Article III’s case-orcontroversy requirement.158 Acknowledging that the proceedings proposed under that bill “differ

152

FED. R. CRIM. P. 41(f)(C).

FED. R. CRIM. P. 41(g).

154

FED. R. CRIM. P. 41(h).

155

Taylor, supra note 151.

156

But see United States v. Isa, 923 F.3d 1300, 1305 (8th Cir. 1991) (information obtained from FISA surveillance used

as evidence in state murder prosecution). If a criminal prosecution is brought against a target of the surveillance and the

government intends on entering into evidence at trial or other court proceeding any evidence derived from “electronic

surveillance,” the government must notify the target of this intended use prior to the proceeding. 50 U.S.C. § 1806(c);

see generally CRS Report WSLG809, Colorado Defendant Challenges Constitutionality of Expanded Foreign

Surveillance Program, by (name redacted) et al. (discussing Article III challenge to the FISA Amendments Act of 2008).

157

This may be particularly true as Congress has recently authorized the FISC to adjudicate issues far removed from a

concrete case-or-controversy, such as Section 702’s requirement that the FISC review certain “targeting” and

“minimization” procedures adopted by the Attorney General with respect to the “targeting of persons reasonably

believed to be located outside the United States.” See 50 U.S.C. § 1881a(i)(2)(B)-(C); see also Nolan, supra note 156.

158

See Foreign Intelligence Electronic Surveillance: Hearings on H.R. 5794, H.R. 9745, H.R. 7308, and H.R. 5632

before the Subcomm. on Legislation of the Permanent Select Comm. on Intelligence, 95th Cong., 2d Sess. 26 (1978)

(statement of John M. Harmon, Asst. Att’y Gen., Office of Legal Counsel).

153

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in many respects from the usual sort of case-or-controversy brought before Article III courts,”

DOJ nonetheless argued that the bill satisfied Article III. In addressing the adverseness argument,

DOJ posited that two parties need not be present in every case, but instead there need only be

“adversity in fact”159 or “possible adverse parties.”160 The adverse interests of the United States in

conducting surveillance and the interests of the target to not be surveilled were sufficient, DOJ

argued, to satisfy the adversity requirement.161 Additionally, DOJ argued that the proposed FISA

orders were sufficiently analogous to traditional warrants to uphold their constitutionality.162

The DOJ’s argument appears to have been accepted by at least two courts. Specifically, in United

States v. Megahey, the United States District Court for the Eastern District of New York rejected

an argument that a court exercising exclusively ex parte powers exceeded the boundaries of

Article III.163 The court noted that “applications for electronic surveillance submitted to the FISC

pursuant to FISA involve concrete questions respecting the application of the Act and are in a

form such that a judge is capable of acting on them.”164 Similarly, the District Court for the

Southern District of California rejected a similar argument in In re Kevork, accepting the warrant

analogy:

“The ex parte nature of FISC proceedings is also consistent with Article III. Government

applications for warrants are always ex parte. Authorizations under Title III are raised on an

ex parte basis. The FISA Court retains all the inherent powers that any court has when

considering a warrant.”165

Standing and a Public Advocate’s Individual Capacity

Assuming that current FISA proceedings are an adjudicatory function of an Article III court and

require adherence to Article III’s case-or-controversy requirements, the question that remains is

whether a FISA advocate could constitutionally participate in the proceedings in some manner.

While a FISA advocate can very likely participate in on-going FISA proceedings, the nature of

that participation may be circumscribed by the requirements of Article III. Generally, whenever

an individual “invo[kes] ... [a] federal court[‘s] jurisdiction” and formally asks an Article III court

to exercise its “remedial powers on his [or her] behalf,”166 the Supreme Court has “consistently ...

required” that the “party seeking judicial resolution of a dispute ‘show that he personally has

159

Id. at 28 (citing 13 WRIGHT, MILLER, & COOPER, FEDERAL PRACTICE AND PROCEDURE § 3530 (1975)).

Id. (citing Muskrat v. United States, 219 U.S. 346, 357 (1911)) (emphasis added).

161

Id. at 28.

162

Id.

163

United States v. Megahey, 553 F. Supp. 1180, 1196 (E.D.N.Y.1982); see also United States v. Falvey, 540 F. Supp.

1306 (E.D.N.Y. 1982).

A somewhat tortuous argument advanced by one of the the defendants is that the Act violates

Article I and III because the FISA Court is not a court, and because Article III judges are being

converted into Article I judges by serving as FISA judges. I reject this argument. Applications for

Title III wiretaps are often taken to magistrates who are neither Article I nor Article III judges.

Similarly, the finding of probable cause for a search warrant in a criminal case is commonly made

ex parte by a magistrate.

Id. at 1313 n.16.

164

Megahey, 553 F. Supp. at 1196.

165

In re Kevork, 634 F. Supp. 1002, 1014 (S.D. Cal. 1985).

166

See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38 (1976) (quoting Warth v. Seldin, 422 U.S.

490, 498-99 (1975)).

160

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suffered some actual or threatened injury as a result of the putatively illegal conduct” of the other

party.167 The injury must be both “concrete and particularized” and “actual or imminent, not

conjectural or hypothetical.”168 In addition to suffering an injury, the “irreducible constitutional

minimum” of “standing” also requires that there be a “causal connection” between the injury and

the conduct that is complained of, such that the injury is “fairly traceable” to the challenged

action.169 Finally, constitutional standing requires that it be likely that the injury will be redressed

by a favorable decision.170 The rationale for these requirements is that Article III courts, in

exercising judicial power, have the ability to “profoundly affect the lives, liberty, and property of

those to whom it extends,”171 and, accordingly, the power to seek relief from an Article III court

must be placed in the hands of those who have a “direct stake” in the outcome of the case, and not

merely in the “hands of ‘concerned bystanders.’”172

Nonetheless, there is case law that indicates that when a federal court is already adjudicating over

an adversarial proceeding, a third party that cannot satisfy Article III’s standing requirements can

play a role in the proceeding. In Bowsher v. Synar, the Supreme Court reviewed a challenge to the

Balanced Budget and Emergency Deficit Control Act of 1985 brought by Members of Congress,

the National Treasury Employees Union (NTEU), and a member of the NTEU.173 After

concluding that the members of the NTEU had alleged an injury-in-fact necessary to provide

them with standing, the Court held that it “therefore need not consider the standing issue as to the

[NTEU] or Members of Congress.”174 The statement from Bowsher has been interpreted to mean

that the “presence of one party with standing is sufficient to satisfy Article III’s case-orcontroversy requirement,” allowing “standingless” parties to continue to participate in the

proceeding.175

Nonetheless, the role that a standingless intervenor can play in an ongoing case-or-controversy in

an Article III court is limited in nature. For example, in Diamond v. Charles, the Supreme Court

stated that an entity that lacks Article III standing can “ride ‘piggy-back’ on” another active party

that does have standing by filing briefs on that party’s behalf and by participating in

argumentation before the court.176 The Diamond Court held, however, that it could not adjudicate

the standingless third party’s request for judicial relief—in that case a request to reverse the lower

court’s ruling—because there existed no other party to the suit that fulfilled the requirements of

Article III standing and was seeking the identical relief as the intervening party.177 Likewise, in

McConnell v. FEC, the Supreme Court allowed various Members of Congress who lacked Article

167

See Diamond v. Charles, 476 U.S. 54, 62 (1986).

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

169

Id.

170

Id.

171

Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 473

(1982).

172

Diamond, 476 U.S. at 62.

173

478 U.S. at 719-21.

174

Id. at 721.

175

See Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006).

176

476 U.S. at at 64. In Diamond, the State of Illinois opted not to appeal a lower court ruling striking down an Illinois

law, and the Supreme Court held that a private citizen could not continue the appeal without Illinois actually

participating before the Court. Id.

177

Id. (“But this ability . . . exists only if the State in fact is an appellant before the Court; in the absence of the State in

that capacity, there is no case for Diamond to join.”).

168

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III standing to intervene as defendants to support the constitutionality of the Bipartisan Campaign

Reform Act because “the Federal Election Commission ... [had] standing, and therefore [the

Court did not need to] address the standing of the intervenor-defendants, whose position [was]

identical to the FEC’s.”178 Collectively these cases suggest that while third parties can participate

in on-going matters in an Article III court, such intervenors are limited in their ability to seek

relief from the court and take independent action in the suit.179 In other words, even if there is an

existing case-or-controversy, Article III prohibits a federal court from exercising the judicial

power and providing judicial relief beyond that which an already existing party with standing has

sought.180 This makes sense because, in contrast to other aspects of justiciability, such as

mootness, ripeness, or political questions, standing is not determined by looking at the case as a

whole, but instead is focused on the party and the party’s relationship to the judicial relief

requested.181 While many have assumed that an intervenor joining an on-going case-orcontroversy “may participate as a fully-recognized party,”182 such a presumption is complicated

by the requirements of Article III, as articulated by the Supreme Court, and may limit the role an

intervening party can play in an on-going proceeding.183

More generally, the Supreme Court has recognized the power of Article III courts to appoint

friends of the court or amici curiae “to represent the public interest in the administration of

178

540 U.S. 93, 233 (2003) (emphasis added).

See generally Elizabeth Zwickert Timmermans, Has the Bowsher Doctrine Solved the Debate?: The Relationship

Between Standing and Intervention as of Right, 84 NOTRE DAME L. REV. 1411, 1425 (2009); see also Kerry C. White,

Rule 24(a) Intervention of Right: Why the Federal Courts Should Require Standing to Intervene, 36 LOY. L.A. L. REV.

527, 553-54 (2002). Such a limit on the legal rights of third party intervenors in Article III courts is confirmed by the

case law that has developed in the lower courts in the wake of Diamond. While a circuit split exists with respect to

whether an intervenor must establish standing to intervene, compare Roeder v. Islamic Republic of Iran, 333 F.3d 228,

233 (D.C. Cir. 2003) (“[D]ecisions of this court hold an intervenor must also establish its standing under Article III of

the Constitution.”), with San Juan Cnty v. United States, 503 F.3d 1163, 1172 (10th Cir. 2007) (en banc) (“On rehearing

... we ... hold that parties seeking to intervene ... need not establish Article III standing ‘so long as another party with

constitutional standing on the same side as the intervenor remains in the case.’”), even in circuits that accept that a

party without standing can intervene in an on-going federal case, those courts generally require that at least one party

exists that adopts the same position as the intervenor. See, e.g., San Juan Cnty, 503 F.3d at 1172; see also Associated

Builders & Contractors v. Perry, 16 F.3d 688, 690 (6th Cir. 1994) (“An intervenor need not have the same standing

necessary to initiate a lawsuit in order to intervene in an existing district court suit where the plaintiff has standing.”);

Chiles v. Thornburgh, 865 F.2d 1197, 1213 & n.17 (11th Cir. 1989) (holding that Article III is relevant to “define the

type of interest” that a standingless intervenor can assert in front of a federal court).

180

Cf. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (“[O]ur standing cases confirm that a plaintiff must

demonstrate standing for each claim he seeks to press ... The Court has never ... permit[ted] a federal court to exercise

supplemental jurisdiction over a party’s claim that does not itself satisfy [the] elements of the Article III inquiry . . . .”);

see also 13B WRIGHT, MILLER, & KANE, FEDERAL PRACTICE AND PROCEDURE § 3531 (“[A] party who might have

standing to advance a claim not made may lack standing to advance a different claim that is made. And a party with

standing to advance one claim actually stated may lack standing to advance other claims, just as a claim as to which

one party has standing may lie beyond the standing of another party.”).

181

See Flast v. Cohen, 392 U.S. 83, 99 (1968); see generally 13B Wright, Miller, & Kane, FEDERAL PRACTICE AND

PROCEDURE § 3531 (“Standing doctrines are employed to refuse to determine the merits of a legal claim, on the ground

that even though the claim may be correct the litigant advancing it is not properly situated to be entitled to its judicial

determination ... The focus is on the party, not the claim itself.”).

182

See White, supra note 179, at 550.

183

As noted by the Supreme Court, the standing inquiry focuses on the party and whether that party can raise a

particular “claim.” See Warth, 422 U.S. at 500 (“Essentially, the standing question in such cases is whether the

constitutional or statutory provision on which the claim rests properly can be understood as granting persons ... a right

to judicial relief.”). A claim, of course, is not isolated to the request for relief in the initial complaint, but has a far

broader legal meaning. See, e.g., BLACK’S LAW DICTIONARY (9th ed. 2009) (defining a claim as “[t]he assertion of an

existing right; any right to payment or to an equitable remedy.”).

179

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justice.”184 In this vein, it is generally recognized and “uncontroversial” that a federal court can

obtain briefing from a third party functioning as an amicus.185 Having said that, the exact limits

on the role of an amicus are unclear, as courts have had a range of opinions on when and how

amici can participate in an Article III proceeding. Some courts have limited when an amicus can

participate in a proceeding to instances where the amicus would be offering (1) a different

perspective than the named parties;186 (2) impartial information on matters of public interest;187 or

(3) observations on legal questions, as opposed to “highly partisan ... account[s] of the facts.”188

Other courts have allowed amici to take a far broader role in Article III proceedings, including

allowing amici to conduct discovery,189 to present and question witnesses,190 and even to enforce

the district court’s judgment.191 If courts begin to allow a broader role for amici in Article III

proceedings beyond merely providing a non-partisan account of the law in briefing, however, the

amicus could become, as one commentator has noted, a “vessel enabling third parties, lacking the

requisite standing, to enter federal courts” and make an end-run around Article III standing

requirements.192

With these principles in mind, it appears that a public advocate who has a more limited role in the

FISA proceedings, such as through providing briefing on a topic of general interest as an amicus,

would not be constitutionally infirm under Article III.193 However, if a public advocate is

envisioned to take on a broader role than that of the traditional third party amicus, it appears more

likely that the privacy advocate would need to satisfy the traditional requirements of

184

See Universal Oil Products Co. v. Root Rfg. Co., 328 U.S. 575, 581 (1946) (Frankfurter, J.). For an extended

discussion of the history and legal origins of amici curiae, see CRS Report R43362, Reform of the Foreign Intelligence

Surveillance Courts: Procedural and Operational Changes, by (name redacted) and (name redacted), at pp.

9-11.

185

See Rebecca Haw, Amicus briefs and the Sherman Act: Why Antitrust Needs a New Deal, 89 TEX. L. REV. 1247,

1250 (May 2011) (“But amicus participation has opened a constitutional back door to interested third parties who want

to influence a judicial decision but lack standing or injury. Although the constitutionality of amicus briefs is

uncontroversial, at times the Court has seemed ambivalent about their proper role.”).

186

See Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1063 (7th Cir. 1997) (Posner, J.) (opining that the

“vast majority of amicus curiae briefs are filed by allies of litigants” and “[t]hey are an abuse.”).

187

See United States v. Michigan, 940 F.2d 143, 164 (6th Cir. 1991); see also Miller-Wohl, Inc. v. Commissioner of

Labor & Indus., Mont., 694 F.2d 203, 204 (9th Cir. 1982) (describing amicus curiae’s role as directing court on matters

of public interest to law); see generally 4 Am. Jur. 2d Amicus Curiae § 1 (1995) (describing traditional amicus curiae

as neutrally providing information to court).

188

See New England Patriots Football Club, Inc. v. University of Colo., 592 F.2d 1196, 1198 n.3 (1st Cir. 1979).

189

See Northside Indep. Sch. Dist. of Bexar v. Texas Educ. Agency 410 F. Supp. 360, 362-63 (W.D. Tex. 1975)

190

See United States v. Dougherty, 473 F.2d 1113, 1125 n.18 (D.C. Cir. 1972).

191

See United States v. Texas, 356 F. Supp. 469, 473 (E.D. Tex. 1972).

192

See Michael K. Lowman, The Litigating Amicus Curiae: When Does the Party Begin After the Friends Leave?, 41

AM. U. L. REV. 1243, 1280-82 (1992) (warning that expanded use of the amicus device allows would-be litigants to

circumvent the standing requirements of Article III); see also Bethune Plaza, Inc. v. Lumpkin, 863 F.2d 525, 531 (7th

Cir. 1988) (Easterbrook, J.) (noting that an amicus’ standing is typically overlooked because the amicus’ “presence

makes no difference”); In re Application of the Fed. Bureau of Investigation for an Order Requiring the Prod. of

Tangible Things, No. BR 13-158 at *6-7(FISA Ct. Dec. 18, 2013), available at http://www.uscourts.gov/uscourts/

courts/fisc/br13-158-Memorandum-131218.pdf (“An amicus curiae has no standing to move for reconsideration of a

decision nor does the Center have standing to seek en banc review by the Court.”).

193

See Universal Oil Products Co., 328 U.S. at 581 (“No doubt a court ... may avail itself ... of amici to represent the

public interest in the administration of justice.”). For a full discussion of the legal issues raised by congressionally

mandating or permitting the use of amici in the FISA courts, see CRS Report R43362, Reform of the Foreign

Intelligence Surveillance Courts: Procedural and Operational Changes, by (name redacted) and (name redacted)

, at pp. 11-16.

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constitutional standing.194 Indeed, in a recent opinion, the FISC, while granting the motion of a

public interest group to submit an amicus brief, denied the public interest group’s motions that the

court (1) reconsider a previous order of the court; (2) establish a docket for the United States’

“next application” pertaining to the collection of bulk telephony metadata; (3) require the United

States to file a public legal brief or declassify certain legal arguments about the bulk metadata

collection program; and (4) order a hearing en banc to reconsider the United States’ request for

authorization of bulk telephony metadata collection.195 For the FISC, “[t]he other relief requested

by” the public interest group went “well beyond the appropriate limits of an amicus curiae,” as

the amicus had “no standing” to move for such relief.196 Likewise, for a public advocate to

formally seek some sort of judicial relief from an Article III court, such as having the ability to

move for a judgment, move for reconsideration of a prior order, or file an appeal of an adverse

ruling, the advocate would need to satisfy Article III’s standing requirements. This is particularly

true because the advocate would be intervening in a case where there is likely no existing party

that is already moving for the “identical” relief that the advocate would seek.197

And it seems unlikely that the FISA advocate, in his or her individual capacity, would have

personally suffered any form of non-generalized injury as a result of the government’s foreign

surveillance activities.198 Even if the FISA advocate could show an “objectively reasonable

likelihood” that, for example, the government, pursuant to Section 702 of FISA, collected the

communications of the advocate, standing remains as “an obstacle for litigants [to] challenge

government surveillance programs” because the advocate did not personally suffer a concrete and

particularized and actual or imminent injury.199 Moreover, Congress cannot obviate Article III’s

194

See generally Bates, supra note 19, at 8 (“Proposals that would empower a permanent advocate to independently

seek reconsideration of FISC decisions, or to appeal them to the Court of Review, would pose difficulties ... substantial

standing and other constitutional issues would be presented if the advocate sought to challenge an authorization granted

by the FISC.”); see also Bradbury, supra note 20, at 16 (“Among other things, the Public Advocate would lack the

Article III standing necessary to initiate an appeal.”).

195

In re Application of the Fed. Bureau of Investigation for an Order Requiring the Prod. of Tangible Things, No. BR

13-158 at *1-2 (FISA Ct. Dec. 18, 2013), available at http://www.uscourts.gov/uscourts/courts/fisc/br13-158Memorandum-131218.pdf.

196

Id. at *6.

197

Cf. McConnell, 540 U.S. at 233.

198

See generally Allen, 468 U.S. at 754 (“[A]n asserted right to have the Government act in accordance with law is not

sufficient, standing alone, to confer jurisdiction on a federal court.”). This is not to say that the advocate could not be

bestowed with procedural rights, such as the right to acquire information in the course of a proceeding in which he is

participating. Cf. FEC v. Akins, 524 U.S. 11, 21 (1998) (holding that a failure to obtain information that is required to

be disclosed pursuant to statute can constitute a sufficient injury for Article III standing purposes). Nonetheless, relief

pursuant to that procedural right cannot be utilized to pursue relief in the name of other statutory or constitutional rights

without having standing to pursue such relief. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 107

(1998) (“Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court.”).

199

See CRS Report R43107, Foreign Surveillance and the Future of Standing to Sue Post-Clapper, by (name redacted),

at p. 12 (examining Clapper v. Amnesty International USA, 568 U.S.—, 133 S. Ct. 1138 (2013)). Relying on an

officially acknowledged, but expired order of the FISC allowing for the collection of telephony metadata from the

Verizon Business Network, two recent federal court decisions found that plaintiffs who were one of millions who

allegedly had non-content information concerning their phone calls collected by the government had standing to

challenge the government’s program purportedly authorized under Section 215 of the PATRIOT Act. See Klayman v.

Obama, –––F.Supp.2d ––––, 2013 WL 6571596, at *14–17 (D.D.C. Dec.16, 2013); ACLU v. Clapper,—F. Supp. 2d—,

2013 WL 6819708 at *9 (S.D.N.Y. Dec. 27, 2013). In one case, the court relied on the fact that the government had

admitted that the program was “comprehensive” in nature and presumably included the data from major

telecommunications providers to hold that plaintiffs had standing to challenge both the collection and analysis of the

telephone data. See Klayman, 2013 WL 6571596, at *27. Another opinion viewed any questions regarding the

implications of whether the collection of metadata constituted an injury as a question regarding the merits of the

(continued...)

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standing requirements by statutorily authorizing the advocate to, for example, appeal a FISC

ruling.200 While there is some case law that would allow the advocate to intervene in an Article III

(...continued)

underlying Fourth Amendment claim and as irrelevant to standing. See ACLU, 2013 WL 6819708 at *9.

Nonetheless, these two cases may not be the end of the debate over whether any member of the general public can

challenge the bulk metadata collection data program as it currently exists. The government, while acknowledging the

existence of the expired order affecting one telephone carrier, has not officially acknowledged, let alone continued to

acknowledge, the current identities of any specific providers from whom the government currently collects telephony

metadata, see, e.g., Robert S. Litt, ODNI General Counsel, Privacy, Technology and National Security: An Overview of

Intelligence Collection, July 19, 2013, http://www.dni.gov/index.php/newsroom/speeches-and-interviews/195speeches-interviews-2013/896-privacy,-technology-and-national-security-an-overview-of-intelligence-collection,

arguably making the assertion that the government has collected one individual’s metadata speculative. See Clapper,

133 S. Ct. at 1149, n.4 (noting that the burden is on plaintiffs to “prove their standing by pointing to specific facts.”).

Moreover, as one of the recent cases noted, the merits of a Fourth Amendment challenge to bulk collection of metadata

is premised on a series of “inflections” that would require the government to not only collect the data, but to analyze it

in some way. ACLU, 2013 WL 6819708 at *21; see generally Horton v. California, 496 U.S. 128, 142 n.11 (1990)

(noting that government acquisition of an item without examining its contents “does not compromise the interest in

preserving the privacy of its contents”). Having such a series of assumptions be the basis of a lawsuit to enjoin the

government’s collection of metadata could be equated to a similar series of assumptions that the Supreme Court in

Clapper found to be fatal to a plaintiff’s standing to seek injunctive relief to challenge section 702 of FISA. See 133 S.

Ct. at 1148 (“[R] respondents’ theory of standing, which relies on a highly attenuated chain of possibilities, does not

satisfy the requirement that threatened injury must be certainly impending.”); see generally Defenders of the Wildlife,

504 U.S. at 560 (holding that to demonstrate standing, one must demonstrate the “invasion of a legally protected

interest.”). The arguably speculative nature of the injury suffered by a member of the general public may be especially

pronounced after recent revelations that the metadata program does not successfully collect the call records of every

American. See Ellen Nakashima, NSA is collecting less than 30 percent of U.S. call data, officials say, WASHINGTON

POST, February 7, 2014, available at http://www.washingtonpost.com/world/national-security/nsa-is-collecting-lessthan-30-percent-of-us-call-data-officials-say/2014/02/07/234a0e9e-8fad-11e3-b46a-5a3d0d2130da_story.html; see also

Siobhan Gorman, NSA Collects 20% or Less of U.S. Call Data, WALL STREET JOURNAL, Feb. 7, 2014, available at

http://online.wsj.com/news/articles/SB100014240527023046809045793 68831632834004; see generally In re: Fed.

Bureau of Investigation for an Order Requiring the Prod. of Tangible Things, No. BR 13-109, at *4 n.5 (“The

production of all call detail records of all persons in the United States has never occurred under this program.”) (FISC

Aug. 29, 2013), available at http://www.uscourts.gov/uscourts/courts/fisc/br13-09-primary-order.pdf. Additionally,

while an injury to a constitutional right can potentially form the basis for standing, “there remains the question of what

facts are sufficient to establish” that the plaintiff has suffered a concrete and particularized injury. See Erwin

Chermerinksy, FEDERAL JURISDICTION 68 (6th ed. 2012). Given the existence of Supreme Court case law that requires

“specific present objective harm” with respect to challenges to federal surveillance policies, see Laird v. Tatum, 408

U.S. 1, 13-14 (1972) ((“Allegations of a subjective ‘chill’” arising from plaintiffs’ knowledge of the existence of “a

governmental investigative and data-gathering activity,” without “any specific action of the [Government] against

them,” were “not an adequate substitute for a claim of specific present objective harm or a threat of specific future

harm”); see also Halkin v. Helms, 690 F.2d 977, 999 (D.C. Cir. 1982) (applying Laird’s “specific present objective

harm” standard to find a plaintiff had no standing to launch a Fourth Amendment challenge to NSA surveillance

activity), it remains an open question whether an ordinary plaintiff, such as the FISA advocate, who potentially was one

of the millions subject to the government metadata collection program without having any distinct injury beyond the

alleged violation of a legal right has standing to challenge the program. See generally CRS Report WSLG756, Federal

Court Ruling on the Bulk Metadata Collection Program: Standing-to-Sue, by (name redacted) et al. More broadly, the

two federal cases only relate to a specific program constituted under one part of FISA, and given Clapper’s holding, it

could be difficult for a public advocate to personally demonstrate an injury-in-fact necessary to challenge any other

foreign surveillance programs or laws.

200

See, e.g., Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009) (“[T]he requirement of injury in fact is a hard

floor of Article III jurisdiction that cannot be removed by statute.”); Gladstone, Realtors v. Bellwood, 441 U.S. 91, 100

(1979) (“Congress may, by legislation, expand standing to the full extent permitted by Article III of the Federal

Constitution, thus permitting litigation by one who otherwise would be barred by the prudential standing rules; in no

event, however, may Congress abrogate the Article III minima to the effect that a plaintiff must always have suffered a

distinct and palpable injury to himself that is likely to be redressed if the requested relief is granted.”);Raines v. Byrd,

521 U.S. 811, 820 n.3 (1997) (“It is settled that Congress cannot erase Article III’s standing requirements by statutorily

granting the right to sue a plaintiff who would not otherwise have standing.”).

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case without having to establish standing, the advocate would still need another party, such as a

telecommunications provider, to already be engaged in the FISA proceeding in order to

participate in such a proceeding.201

Third-Party Standing Doctrine and a Public Advocate

Given the potential difficulties with the FISA advocate having standing in his own capacity to

seek judicial relief from the FISC, it could be argued that the advocate should invoke the rights of

absent third parties to obtain standing. Such an argument necessitates a discussion regarding the

law of third-party standing and representational standing. Standing-to-sue “involves both

constitutional limitations on federal-court jurisdiction and prudential limitations on its

exercise.”202 One of the prudential principles that bears on the question of standing is that a party

seeking judicial relief from a federal court cannot “rest his claim to relief on the legal rights or

interests of third parties,” rather than his own.203 The Supreme Court has recognized a limited

exception to this principle when the litigant has a “close relation to the third party,” and “some

hindrance” exists “to the third party’s ability to protect his or her own interests.”204 Prudential

standing requirements, unlike their Article III counterparts, can, however, be “modified or

abrogated by Congress.”205 Nonetheless, it is assumed that “Congress legislates against the

background of [the Court’s] prudential standing doctrine,” and, accordingly, the prudential

standing rules—including the rule against third-party standing—apply unless “expressly negated”

in statute.206 Accordingly, legislation providing the public advocate the right to litigate on behalf

of third parties will need to explicitly say so in the text of such a proposal.207 More importantly,

even if Congress explicitly abrogates the prudential standing requirements, Congress cannot

“abrogate the [Article] III minima” requiring a party seeking judicial relief to have suffered an

201

Diamond, 476 U.S. at 62; see also McConnell, 540 U.S. at 233. For a discussion of when a telecommunications firm

can challenge a FISA request, see CRS Report R43362, Reform of the Foreign Intelligence Surveillance Courts:

Procedural and Operational Changes, by (name redacted) and (name redacted), at pp. 2-6.

202

Warth, 422 U.S. at 498.

203

Id. at 499.

204

See Powers v. Ohio, 499 U.S. 400, 425 (1991).

205

See Bennett v. Spear, 520 U.S. 154, 162 (1997).

206

Id. at 163.

207

In case law predating Bennett, the Supreme Court held that Congress abrogated the prudential standing requirements

in sections 810 and 812 of the Fair Housing Act of 1968. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 372

(1982). A leading secondary source suggests that “[m]any other Acts of Congress appear on their face to contain very

broad grants of standing,” eliminating prudential standing requirements for such claims. See WRIGHT AND KANE, LAW

OF FEDERAL COURTS § 13 n.87 (7 Ed. 2011). Other authority suggests that the standard for Congress to lawfully

abrogate prudential standing requirements is much higher. See,e.g., Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d

1114, 1162 (10th Cir. 2013) (Bacharach, J., concurring) (arguing that Congress must either “mention[] prudential

restrictions” or say “that the standing rules under Article III [are] exclusive” to abrogate prudential standing

requirements). In the absence of such a waiver of the prudential standing requirements, it is doubtful that a public

advocate would have the right to seek judicial relief based on the legal rights of third parties under the exception to the

traditional third-party standing rule as enunciated in Powers. First, the public advocate may have difficulty in arguing

that he personally has suffered an injury in fact, see supra note 199 and accompanying text. Powers, 499 U.S. at 425.

Second, it is unlikely that the public advocate has a sufficiently close relationship with the public-at-large or those

whose privacy rights are threatened by government foreign surveillance efforts, as the advocate would be representing

“unknown” and “unascertained” clients. See Kowalski v. Tesmer, 543 U.S. 125, 131 (2004) (“The attorneys before us

do not have a ‘close relationship’ with their alleged clients; indeed they have no relationship at all.”); cf. infra “Next

Friend Standing and the Public Advocate.”.

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injury-in-fact that is likely to be redressed if the requested relief is granted.208 In other words, in

order for a public advocate to seek judicial relief on behalf of third parties not before the FISA

courts, the advocate himself would likely need to satisfy Article III’s standing requirements.

Representational Standing and a Public Advocate

Notwithstanding the tenets of the third-party standing doctrine, there is another aspect of standing

law that does allow an individual or group to assert the rights of an absent third party without

having to demonstrate that the litigant himself has suffered an injury-in-fact. Specifically, under

the doctrine of “representational standing” in “certain circumstances, particular relationships ...

are sufficient to rebut the background presumption that litigants may not assert the rights of

absent third parties.”209 There are several strands of the doctrine of representational standing. For

example, through “associational standing,” a legal theory often relied on in environmental

lawsuits,210 an association has standing to bring suit on behalf of its members when (1) its

members would otherwise have standing; (2) the interests the association seeks to protect are

germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested

“requires the participation of the individual members in the lawsuit.”211 Likewise, the Court has

extended the representational standing doctrine such that states have standing to litigate as parens

partiae to protect certain quasi-sovereign interests212 and an “assignee of a claim has standing to

assert the injury in fact suffered by the assignor.”213 Notwithstanding these various branches of

the doctrine, with respect to the specific issue of allowing a FISA public advocate to seek judicial

relief on behalf of a third party, two strands of representational standing are of particular

relevance: “next friend” standing and the “agency theory” of standing.

Next Friend Standing and a Public Advocate

“Next friend” standing—the concept that under certain circumstances a qualifying party may be

able to bring claims as a “next friend” on behalf of the party with proper standing214—is

potentially relevant to the question of whether a public advocate can seek judicial relief from the

FISA courts on behalf of those whose privacy interests are implicated by government foreign

surveillance efforts. The Court enunciated the limits of next friend standing in Whitmore v.

Arkansas.215 In Whitmore, after rejecting that the petitioner had standing in his individual capacity

208

Gladstone, Realtors, 441 U.S. at 100.

United Food & Commer. Workers Union Local 751 v. Brown Group, 517 U.S. 544, 557 (1996).

210

See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000).

211

Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977).

212

Massachusetts v. EPA, 549 U.S. 497, 519-520 & n.17 (2007).

213

Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 773 (2000).

214

See Anthony J. Casey, Maintaining the Integrity of Death: An Argument for Restricting a Defendant’s Right to

Volunteer for Execution at Certain Stages in Capital Proceedings, 30 AM. J. CRIM. L. 75, 79 n.22 (Fall 2002). “Next

Friend” standing has several corollaries, such as when a litigant proceeds as a guardian ad litem for a minor, and as a

consequence, the doctrine would govern with respect to questions about whether labeling the advocate as a guardian

satisfies Article III concerns. See Morgan v. Potter, 157 U.S. 195, 198 (1895) (explaining that a “Next Friend” is

“neither technically nor substantially the party, but resembles an attorney, or a guardian ad litem, by whom a suit is

brought or defended in behalf of another”); see also 6A WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND

PROCEDURE, § 1548 (“A guardian ad litem or next friend, on the other hand, always has been deemed a nominal party

only; the ward is the real party in interest ... ”).

215

495 U.S. 149 (1990).

209

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to “press an Eighth Amendment objection” to a fellow death row inmate’s conviction and

sentence, the Court evaluated whether Jonas Whitmore could proceed as “next friend of Ronald

Gene Simmons.”216 As the Whitmore Court explained, a “‘next friend’ does not himself become a

party to” a case, “but simply pursues the cause on behalf of [another], who remains the real party

in interest.”217 Although “no federal statute authoriz[ed] the participation of ‘next friends’” with

respect to Whitmore’s claim, the Court held that even with a federal statute granting such

authority, the “scope of any federal doctrine of ‘next friend’ standing is no broader than what is

permitted under the habeas corpus statute,”218 which placed “at least two firmly rooted

prerequisites for ‘next friend’ standing.”219 First, a “‘next friend’ must provide an adequate

explanation—such as inaccessibility, mental incompetence, or other disability—why the real

party in interest cannot appear on his own behalf to prosecute the action.”220 Second, the “‘next

friend’ must be truly dedicated to the best interests of the person on whose behalf he seeks to

litigate,” which may require that the “friend” have “some significant relationship with the real

party in interest.”221 The Supreme Court recognized that these two limitations on the doctrine “are

driven by the recognition” that “if there were no restriction on ‘next friend’ standing in federal

courts, the litigant asserting only a generalized interest in constitutional governance could

circumvent the jurisdictional limits of [Article] III simply by assuming the mantle of ‘next

216

Id. at 161-62.

Id. at 163.

218

Next friend standing is generally used in the context of habeas corpus proceedings. United States v. Ken Int'l Co.,

897 F. Supp. 462, 464 (D. Nev. 1995). Nonetheless, as Whitmore suggests, there are other contexts where next friend

standing can be relevant. 495 U.S. at 162 n.4 (noting that some courts have “permitted ‘next friends’ to prosecute

actions outside the habeas corpus context on behalf of infants, other minors, and adult mental incompetents.”).

219

Id. at 163-165.

220

Id. at 163.

221

Id. at 163-64; see also Coalition of Clergy v. Bush, 310 F.3d 1153, 1159-60 (9th Cir. 2002) (“We have subsequently

described the two-pronged Whitmore inquiry as follows: ‘In order to establish next-friend standing, the putative next

friend must show: (1) that the petitioner is unable to litigate his own cause due to mental incapacity, lack of access to

court, or other similar disability; and (2) the next friend has some significant relationship with, and is truly dedicated to

the best interests of, the petitioner.”) (quoting Massie ex rel. Kroll v. Woodford, 244 F.3d 1192, 1194 (9th Cir. 2001)).

While at least one federal appellate court continues to hold that a “significant relationship” between the real party-ininterest and their representative is not absolutely needed for next-friend standing, see Sam M. v. Carcieri, 608 F.3d 77,

90 (1st Cir. 2010) (“While the Supreme Court recognized that some courts have ‘suggested’ that a Next Friend must

also have a significant relationship with the real party in interest, the Court did not hold that a significant relationship is

a necessary prerequisite for Next Friend status.”); Coalition of Clergy, 310 F.3d at 1165 (Berzon, J., concurring) (“I

write separately because I do not believe that we need to address whether next friend standing always requires a

significant relationship. If we did need to address that question, I would be inclined to hold that a significant

relationship is not always necessary.”), the overwhelming majority of federal appellate courts have concluded

otherwise. See In re Moser, 69 F.3d 691, 693 (3d Cir. 1995) (affirming a plaintiff had standing as next friend because

he “clearly is dedicated to the best interests of Leon Moser and has a significant relationship with him”); see also

Hamdi v. Rumsfeld, 294 F.3d 598, 604 (4th Cir. 2002) (“We conclude that the significant-relationship inquiry is in fact

an important requirement for next friend standing”); Lucarelli v. United States, 65 Fed. Appx. 926, 927 (6th Cir. 2003)

(describing a three part test for next friend standing); T.W. ex rel. Enk v. Brophy, 124 F.3d 893, 897 (7th Cir. 1997)

(“He must have some significant relationship with the real party in interest”); Amerson v. Iowa, 59 F.3d 92, 93 n.3 (8th

Cir. 1995) (“[N]ext friend has burden to establish ... that she has some significant relationship with real party in

interest”); Coalition of Clergy, 310 F.3d at 1159-60; Centobie v. Campbell, 407 F.3d 1149, 1151 (11th Cir. 2005)

(concluding plaintiff lacked next friend standing because, in part, because she did “not have ‘some significant

relationship with the party in interest.’”). However, even in the First Circuit, which disclaims the absolute necessity of a

“significant relationship” test, the appellate court limited its holding to situations where the real party in interest had

“no significant relationships” with any other individual and the assertion of the rights of others is not a “mere pretext”

for advancing ulterior political or economic aims.” See Sam M., 608 F.3d at 91 (internal citations omitted) (holding that

certain foster care children lacked “significant ties with their parents” to allow for a third party to assert their interests

as next friends).

217

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friend.’”222 Ultimately, the Court in Whitmore concluded that the petitioner had failed to

demonstrate that Simmons was “unable to proceed on his own behalf” and dismissed Whitmore’s

next friend claim for want of standing.223

Assuming the doctrine applies outside of the context of a criminal proceeding,224 next friend

standing is likely a difficult theory on which to base standing for a public advocate to seek

judicial relief on behalf of the public-at-large or unnamed members of the public whose privacy

has been allegedly threatened. First, next friend standing still requires that the real party in

interest suffer an injury-in-fact,225 and it remains unclear whether certain foreign surveillance

conduct results in a concrete and particularized and actual or imminent injury to any member of

the general public for whom the advocate could serve as the “next friend.”226 Second, an

argument can be made that the real parties in interest that the FISA advocate represents are

capable of protecting their own rights and prosecuting an action on their own. Unlike the typical

next friend, the FISA advocate would not be representing someone who is suffering from a

“mental or physical disability precluding their representation.”227 Arguably, a target of

government foreign surveillance does not have “access” to the FISA courts because of a lack of

knowledge about the surveillance activity and because of the lack of a statutory mechanism for a

member of the public to be heard before the FISC. Nonetheless, the type of inaccessibility to a

court in the “next friend” standing context typically concerns a party who is “held

incommunicado” and subject to “severe restrict[ions]” on their liberty,228 as opposed to a party

who cannot access a particular forum for statutory reasons or a party who is simply unaware that

their rights are being violated.229 Moreover, as two recent cases illustrate, members of the general

public may have access to the courts to assert their privacy concerns regarding government

222

Whitmore, 495 U.S. at 164. Some have argued that the restriction on next friend standing in Whitmore “did not turn

on Article III” because the rule derived from “decisions applying the habeas corpus statute.” Caroline Nasrallah Belk,

Nex Friend Standing and the War on Terror, 53 DUKE L.J. 1747, 1758 (April 2004). However, such a view appears to

be in conflict with language in Whitmore stating that the restrictions based on the next friend doctrine are necessary to

preserve the “jurisdictional limits of Article III.” 495 U.S. at 164. Moreover, the Whitmore Court was clear that even

assuming that there was congressional authorization for next friend standing akin to the habeas statute, the doctrine was

“no broader than what is permitted by that” law. Id. at 164-65. It should be noted that in Elk Grove United School

District v. Newdow, the Court concluded that because California law deprived the respondent of the right to sue as next

friend that he lacked “prudential standing to bring this suit in federal court.” 542 U.S. 1, 17 (2004). Notwithstanding

this language, the Court’s reference to prudential standing in Newdow appears to be centered on the fact that the

standing inquiry turned on “hard questions of domestic relations” which made it “prudent” for “the federal court to stay

its hand.... ” Id. Nothing in Newdow indicates that the next friend standing inquiry is per se prudential as opposed to

constitutional in nature, and Whitmore’s holding appears to confirm that conclusion. See 495 U.S. at 164-65. In other

words, it appears unlikely that Congress could circumvent the limitations imposed by Whitmore, as that could provide a

means by which the legislature could override core Article III limits on the judicial power. Id.

223

495 U.S. at 166.

224

See supra note 218.

225

See Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 24 (D.D.C. 2010).

226

See supra note 199 and accompanying text; but see Clapper, 133 S. Ct. at 1154 (rejecting argument by respondents

that “they should be held to have standing because otherwise the constitutionality of [section 702 of FISA] could not be

challenged.”).

227

See Coalition of Clergy, 310 F.3d at 1160.

228

See id. at 1160-61.

229

In contrast, the context of third-party standing, where the litigant can personally satisfy Article III’s standing

requirements, a third party’s inability to sue because of a lack of statutory redress or awareness of the injury can suffice

such that the litigant can assert the legal rights of the absent third party. See generally ERWIN CHERMERINKSY, FEDERAL

JURISDICTION 85-86 (6th ed. 2012).

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surveillance activity.230 As the Clapper court noted, judicial review in the context of challenges to

foreign surveillance efforts by the public is “not farfetched” and “by no means” are FISA

proceedings “insulate[d]” from judicial review, arguably making it difficult for a public advocate

to contend that the real party in interest cannot access a federal court to raise his own interests.231

Third, the public advocate may have difficulty demonstrating that he has a “significant

relationship” between himself and the absent real parties in interest.232 It is unclear whether any

of the FISA advocate proposals envision the advocate seeking relief on behalf of a specific

individual or specific group of people,233 and federal courts have been loath to grant “next friend”

standing to persons who cannot identify a real party in interest and can only state they are acting

on behalf of a large group of unidentified individuals.234 As one federal court noted, one cannot

identify “any case in any context in which [a litigant] has been allowed to pursue habeas (or

other) relief on behalf of a non-class of unidentified [persons] where [the persons’] identity is

unknown by counsel representing” them.235 Moreover, the advocate very likely will not have any

sort of prior relationship with the vast majority of the real parties in interest—indeed, he is a

“stranger” to those that he represents—indicating that there is an insufficient relationship.236 And,

given the secrecy that surrounds the FISA judicial review process and the confidentiality

obligations likely to be imposed on a FISA advocate, 237 any proceedings involving the FISA

advocate likely would be “devoid of any effort [by the advocate] to even communicate” with the

real parties in interest238and likely lack any sort of consent from the real party in interest to pursue

his judicial relief,239 indicating that the advocate lacks the necessary relationship that may be

needed to be a “next friend.” Even amongst the courts that have embraced the most “elastic

construction of the significant relationship requirement”240 for “next friend” standing have only

done so in cases where each real party in interest had absolutely “no significant relationships” and

where the assertion of the rights of the real party in interest was not a pretext for advancing

230

See supra note 199 and accompanying text.

133 S. Ct. at 1154, n.8.

232

Whitmore, 495 U.S. at 163-165.

233

See, e.g., Ensuring Adversarial Process in the FISA Court Act, H.R. 3159, 113th Cong. § 2(b) (1st Sess. 2013)

(stating that the advocate “represent[s] the privacy and civil liberties interests of the people of the United States ... ”);

see also Bates, supra note 19, at 4 (“Advocates of the type put forward in various proposals to change FISA would not

actually represent a proposed target of surveillance or any other particular client.”).

234

See, e.g., Coalition of Clergy, 310 F.3d at 1162 (rejecting that a coalition of “clergy, lawyers, and law professors”

could assert the rights of Guantanamo “detainees en masse.”); Bell v. United States, No. 07-2594, 2008 WL 4630328 at

*1 (E.D. Cal. Oct. 17, 2008) (“Nowhere in his petition does he state that the real party in interest cannot appear on his

own behalf, nor does he state he has any kind of significant relationship with the real party in interest. In fact, he does

not even identify an individual on whose behalf he is acting. Stating he is acting on behalf of all the other federal

prisoners is not sufficient.”); Does v. Bush, No. 05-313, 2006 WL 3096685 at *5 (D.D.C. Oct. 31, 2006) (“Counsel

cannot demonstrate that Counsel is dedicated to the best interests of unspecified individuals based only on speculation

as to unidentified detainees’ intentions or wishes to litigate in United States courts.”).

235

See Does, 2006 WL 3096685 at *7.

236

See T.W. by Enk, 124 F.3d at 897 (“To entitle a stranger to bring suit on behalf of children or other legal

incompetents on the basis of blunderbuss allegations in a complaint is too facile a circumvention of the ordinary

limitations on standing.”).

237

See, e.g., Ensuring Adversarial Process in the FISA Court Act, H.R. 3159, 113th Cong. § 2(a)(1) (1st Sess. 2013).

238

See Coalition of Clergy, 310 F.3d at 1162.

239

See Sanchez-Velasco v. Sec'y of the Dep't of Corr., 287 F.3d 1015, 1027 (11th Cir. 2002) (“We have concluded that

‘some significant relationship’ does exist when the would-be next friend has served in a prior proceeding as counsel for

the real party in interest and did so with his consent.”).

240

Coalition of Clergy, 310 F.3d at 1162.

231

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ulterior political aims.241 Given that the burden “is on the ‘next friend’ clearly to establish the

propriety of his status, and thereby justify the jurisdiction of the court” over the next friend’s

claims,242 it may be difficult for the FISA advocate, whose general mission may have nothing to

do with a specific individual, to demonstrate that he can proceed as the next friend of certain

unidentified members of the public.243

It should be noted that the types of litigants who the Supreme Court, pursuant to various

corollaries244 of the doctrine of next friend standing, has determined can seek judicial relief on

behalf of absent third parties seem distinguishable from the role of the FISA advocate.245 A

litigant that operates even pursuant to a statute as a guardian ad litem or a trustee does so pursuant

to a host of long-established legal obligations246 owed to that absent party, a breach of which

would expose the litigant to civil liability.247 With respect to the FISA advocate, while several

proposals have suggested that the advocate has a general and broadly defined mission to protect

the civil liberty interests of the real parties in interest he represents,248 no proposal appears to

create any sort of “obligation” whereby the advocate is discharging a “legal obligation [that] is an

independent, personal benefit that supports” the advocate’s standing in federal court.249 Relatedly,

in contrast to the concept of a trustee or a guardian ad litem, a FISA public interest advocate is a

wholly novel concept in American law250 and the Supreme Court has interpreted the judicial

power to be limited to “cases and controversies of the sort traditionally amenable to and resolved

by the judicial process,”251 which arguably would exclude the power to adjudicate the advocate’s

prayers for relief on behalf of an absent third party.252

241

See Sam M., 608 F.3d at 91-92.

Whitmore, 495 U.S. at 164.

243

See, e.g., Ensuring Adversarial Process in the FISA Court Act, H.R. 3159, 113th Cong. § 2(b) (1st Sess. 2013)

(providing that the FISA advocate’s mission is to “represent the privacy and civil liberties interests of the people of the

United States in the matter before the court.”).

244

See supra note 214 (noting that the doctrines of standing for guardians ad litem and trustees fall under the broader

doctrine of next friend standing).

245

See Spring Communs. Co., 554 U.S. at 288.

246

See, e.g., Jones v. Brennan, 465 F.3d 304, 308 (7th Cir. 2006) (collecting cases holding that a guardian ad-litem,

when not acting as an agent of a court, can be liable if they “step outside the scope of their agency and engage in selfdealing.”); see also Gibbs v. Gibbs, 210 F.3d 491, 510 (5th Cir. 2000) (noting that a guardian ad litem can be liable in a

civil action for damages resulting from a breach of his duties as a personal representative for the minor.). For similar

authority respecting a trustee’s legal

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