Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate
Released: 2014-03-21T00:00:00

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, 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. 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." 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. While the novelty of such FISA reforms does not evidence that the law is constitutionally infirm, 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 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. 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. 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. For example, the only parties allowed to be present in a grand jury proceeding are the jurors, prosecutor, witnesses, and a court stenographer, and an authorized magistrate can issue a search warrant upon the request of an attorney for the government. In this vein, FISA proceedings are also primarily ex parte in nature, as the FISC is authorized to issue orders approving of electronic surveillance, certain physical searches, the use of a pen register or a trap and trace device, or the access to certain business records for foreign intelligence and international terrorism investigations upon a proper showing made in an application by a federal officer.

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. Critics of the current FISA proceedings have cited the infrequency of the FISC's rejections of government surveillance requests as evidence that the lack of an adversarial process has prevented the court from fully and properly scrutinizing the government's position. While some reject this line of reasoning, 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.

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," the "Privacy Advocate General," the "Public Advocate," the "Constitutional Advocate," a "public interest advocate," or an "ombudsman." 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" agency or as a part of an existing agency, such as within the DOJ's National Security Division. In contrast, others have suggested establishing the office of a public advocate as an independent entity within the judicial branch, perhaps akin to the structure of Federal Public Defender Organizations that exist in many federal judicial districts in aid of providing criminal defense representation. 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, the Privacy and Civil Liberties Oversight Board (PCLOB), or a federal court 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.

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. In other words, a public advocate would "represent the privacy and civil liberties" interests of the general public by advocating for "legal interpretations that minimize the scope of surveillance and the extent of data collection and retention." Second, public advocate proposals generally contemplate the advocate taking on a robust role in FISA court proceedings. While the various proposals differ at the margins, public advocate measures generally envision the advocate having a range of responsibilities, such as being able to intervene in ongoing cases, brief the FISC on relevant matters, conduct some forms of discovery, file motions seeking discrete forms of relief from the court, move the court to reconsider past orders, or even appeal an adverse ruling. 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, other proposals establish a public advocate in an "independent agency" or "independent establishment" or the judicial branch with "for cause" removal protections. 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 exception the Constitution only applies to the federal government and, via the Fourteenth Amendment and certain other clauses, to the governments of the states. 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.

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.

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 government. 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. Put another way, an opponent of the government's position cannot be converted into its "virtual agent." 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."

Nonetheless, Congress's disavowal of a federally created entity's status as a government agent in a statute is not controlling. 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." 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.

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. The central question is, therefore, whether the proposals to establish an office of a public advocate are created to further a governmental objective. 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 services and higher education facilities. 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. 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. Given this, it appears that a permanent office 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. 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. 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.

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. 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.

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 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.

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.

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."

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." 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."

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 eight-member 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 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. 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. 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." 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." 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. 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. 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." 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."

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 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." 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.

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 public in the FISA court and seek judicial relief that would bar certain foreign intelligence gathering by the executive branch. 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.]" 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 . 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 clerk or an election supervisor, positions the Supreme Court has viewed as requiring adherence to the Appointments Clause. It should be noted that some proposals 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. 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 occasional and temporary," 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.

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, 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." 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" 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. 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. 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 is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate." The reasoning in Edmond was again confirmed by the Supreme Court in Free Enterprise Fund v. Public Company Accounting Oversight Board , 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. 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.

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. 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, 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.'" 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. As a consequence, in order to ensure the principles of political accountability that underlie the Appointments Clause, 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. 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 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.

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, 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. 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."

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." In addition, especially in light of the legal advisors already employed by the FISC to critically analyze government surveillance applications, 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," 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, raising the specter of an "incongruity" between the functions normally performed by the FISA court and the appointment power. 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, federal courts generally "lack ... competence" in the area of national security and foreign affairs, 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.

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. Specifically, some commentators have questioned whether the judicial power, which extends to "cases" or "controversies," 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. 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 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," which, in turn, is limited to the adjudication of "cases" or "controversies." 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. 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.

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." This "concrete adverseness " helps to "sharpen[] the presentation of issues upon which the court so largely depends for illumination of difficult constitution questions[.]" 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."

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. The Court explained that "the absence of a genuine adversary issue between the parties" precluded resolution of the case. 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. 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." 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." 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. Olson and Mistretta v. United States , in which the Court held that Article III judges may, in certain limited instances, engage in non-adjudicatory, non-adversarial 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. 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. 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.

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. 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 power to pronounce." 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.

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." 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 non-adjudicatory function, none of the typical constraints imposed by Article III, like the doctrines of standing, mootness, ripeness, and political questions, 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." 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. However, in a traditional warrant proceeding the results can be contested through some judicial process. 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 search. Additionally, the target may request the return of his property and may move to suppress the evidence if offered at trial. 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." 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. 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.

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-or-controversy requirement. Acknowledging that the proceedings proposed under that bill "differ 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" or " possible adverse parties." 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. Additionally, DOJ argued that the proposed FISA orders were sufficiently analogous to traditional warrants to uphold their constitutionality.

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. 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." 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."

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," the Supreme Court has "consistently ... required" that the "party seeking judicial resolution of a dispute 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct" of the other party. The injury must be both "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." 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. Finally, constitutional standing requires that it be likely that the injury will be redressed by a favorable decision. 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," 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.'"

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. 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." 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-or-controversy requirement," allowing "standingless" parties to continue to participate in the proceeding.

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. 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. Likewise, in McConnell v. FEC , the Supreme Court allowed various Members of Congress who lacked Article 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." 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. 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. 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. While many have assumed that an intervenor joining an on-going case-or-controversy "may participate as a fully-recognized party," 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.

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 justice." In this vein, it is generally recognized and "uncontroversial" that a federal court can obtain briefing from a third party functioning as an amicus . 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; (2) impartial information on matters of public interest; or (3) observations on legal questions, as opposed to "highly partisan ... account[s] of the facts." Other courts have allowed amici to take a far broader role in Article III proceedings, including allowing amici to conduct discovery, to present and question witnesses, and even to enforce the district court's judgment. 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.

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. However, if a public advocate is envisioned to take on a broader role than that of the traditional third party amic us , it appears more likely that the privacy advocate would need to satisfy the traditional requirements of constitutional standing. 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. 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. 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.

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. 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. Moreover, Congress cannot obviate Article III's standing requirements by statutorily authorizing the advocate to, for example, appeal a FISC ruling. While there is some case law that would allow the advocate to intervene in an Article III 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.

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." 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. 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." Prudential standing requirements, unlike their Article III counterparts, can, however, be "modified or abrogated by Congress." 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. 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. 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 injury-in-fact that is likely to be redressed if the requested relief is granted. 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." There are several strands of the doctrine of representational standing. For example, through "associational standing," a legal theory often relied on in environmental lawsuits, 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." Likewise, the Court has extended the representational standing doctrine such that states have standing to litigate as parens partiae to protect certain quasi-sovereign interests and an "assignee of a claim has standing to assert the injury in fact suffered by the assignor." 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 standing —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. In Whitmore , after rejecting that the petitioner had standing in his individual capacity 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." 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." 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," which placed "at least two firmly rooted prerequisites for 'next friend' standing." 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." 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." 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 friend.'" 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.

Assuming the doctrine applies outside of the context of a criminal proceeding, 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, 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." 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." 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, 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. Moreover, as two recent cases illustrate, members of the general public may have access to the courts to assert their privacy concerns regarding government surveillance activity. 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.

Third, the public advocate may have difficulty demonstrating that he has a "significant relationship" between himself and the absent real parties in interest. 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, 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. 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. 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. And, given the secrecy that surrounds the FISA judicial review process and the confidentiality obligations likely to be imposed on a FISA advocate, any proceedings involving the FISA advocate likely would be "devoid of any effort [by the advocate] to even communicate" with the real parties in interest and likely lack any sort of consent from the real party in interest to pursue his judicial relief, 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" 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 ulterior political aims. 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, 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.

It should be noted that the types of litigants who the Supreme Court, pursuant to various corollaries 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. 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 obligations owed to that absent party, a breach of which would expose the litigant to civil liability. 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, 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. 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 law 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," which arguably would exclude the power to adjudicate the advocate's prayers for relief on behalf of an absent third party.

Perhaps the best argument proponents of establishing an office of the FISA advocate can make with respect to next friend standing is that Whitmore and its progeny are simply distinguishable based on the fact that a FISA advocate would be acting pursuant to some sort of statutory authorization. Specifically, an argument can be made that unlike the situation in Whitmore , where a prisoner was attempting to proceed on behalf of a fellow inmate without the aid of any statute granting such authority, the FISA advocate would be embedded with a legal obligation to represent the privacy rights of the general public or those that are the targets of government surveillance, and such an "obligation" allows the advocate to vindicate the rights of third parties through litigation. As a corollary to that argument, one could conceivably contend that, given the needed qualifications to be a FISA advocate and the statutory mission of the office in protecting the constitutional rights of the public, the advocate must necessarily as a matter of law be "truly dedicated to the best interests" of the real parties in interest that he represents.

Nonetheless, formally empowering the advocate to be the "next friend" of the general public or those who are the target of government surveillance in a federal statute may not alleviate the general Article III concerns in allowing an individual to assert the interests of amorphous, absent third parties with whom he has no relationship. First, the holding of Whitmore did not turn on the fact that the petitioner lacked the statutory authority to proceed as a "next friend," and federal courts that have followed Whitmore 's limits on "next friend" standing have often done so in the context where Congress has affirmatively allowed third parties to assert the rights of friends under the federal habeas statute. In fact, the Whitmore Court noted that the "scope of any federal doctrine of 'next friend' standing is no broader than what is permitted by the habeas corpus statute," indicating that there are indeed limits as to what "friends" Congress can statutorily employ to represent absent third parties in federal court.

Second, an act of Congress that allows a public advocate to seek judicial relief because of a generalized interest in representing the public's privacy interests would appear to violate core Article III concerns animating the Whitmore decision. Specifically, the Supreme Court in Whitmore held that the restrictions on "next friend" standing were necessary to prevent a "litigant asserting only a generalized interest in constitutional governance [from] circumvent[ing] the jurisdictional limits of [Article] III by simply assuming the mantle of 'next friend.'" The Court's reference to a litigant who asserts a "generalized interest in constitutional governance" is strikingly similar to proposals for a FISA advocate charging the office with the generalized duties to "protect individual rights," "represent the privacy and civil liberties interests of the people of the United States," or "vigorously advocate ... in support of legal interpretations that protect individual privacy and civil liberties." Given that Congress may not "abrogate" "Article III minima," it is unclear how statutorily labeling a public advocate as, for example, a "next friend" of the general public would not merely be a unconstitutional attempt to expand the judicial power such that a federal court could grant judicial relief to someone with only a generalized interest in the litigation. Moreover, if Congress can grant a public advocate standing as a next friend, it is difficult to understand what principle would limit Congress from overriding the federal judiciary's closely guarded limits on its jurisdiction by statutorily allowing "anyone in [a] universe of interested persons" to "seek in federal court what [that person] could not otherwise obtain—namely, the vindication of objectives better suited to political as opposed to judicial resolution." As a consequence, the statutory authorization of a public advocate as a "next friend" may very well not alleviate any Article III concerns created by such a proposal.

Agency and a Public Advocate

Nonetheless, even if a public advocate cannot, in his or her individual capacity or as "next friend" of the real party in interest, satisfy the requirements of Article III standing, there is some authority suggesting that the advocate could still seek judicial relief in a FISA proceeding if he or she is authorized to appear and assert the interests of a party who does have standing as that real party in interest's agent. The "agency theory" of standing is a distinct thread of the broader representational standing doctrine and contrasts with "next friend" standing in that agency theory is not centrally dependent on the real party in interest's inability to directly assert his legal rights or a "significant relationship" between the litigant and the party whose rights are asserted. Instead, to seek judicial relief as an agent of another in an Article III court, a litigant must be authorized by that third party to do so such that the litigant's interest is generally not divorced from the interests of the principal.

The most recent Supreme Court case to enunciate the limits of agency theory and Article III standing was Hollingworth v. Perry, where the Court considered an Equal Protection challenge to Proposition 8. That California law amended the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California. Because the state officials had declined to appeal an adverse district court ruling, however, the Supreme Court requested briefing on the question of whether the official "proponents" of the proposition had standing under Article III to appeal the district court's decision. After rejecting the argument that the proponents of Proposition 8 had a particularized injury, the Court considered the argument that the plaintiffs were formally authorized to litigate on behalf of the State of California.

Hollingsworth ultimately rejected this proposition, noting that while a third party can be authorized to represent the interests of a state when that party is an officer of the state, acting in an official capacity, California law, as interpreted by the California Supreme Court, did not "describe[ the] petitioners" as being "authorized to act" as "agents of the people." Instead, the Supreme Court found that the California High Court had merely allowed the "petitioners [to] argue in defense of Proposition 8," which did not mean that the proponents were " de facto public officials." The Supreme Court went further to dispute the contention made by the petitioners that they were the "agents of" California because, among other things, there existed no principal controlling the agent's actions, and the proponents were not elected to their position, took no oath, had no fiduciary duty to the people of California, and were not subject to removal. In short, Hollingsworth held that to have standing to seek judicial relief on behalf of an absent third party a litigant must be officially authorized by that third party to do so and may need to have a relationship with that third party that exhibits some of the "most basic features of an agency relationship."

With respect to the FISA privacy advocate and the agency theory of standing, the critical question is who is the real party in interest on whose behalf the advocate would be seeking some form of judicial relief—such as a motion for reconsideration or an reversal of a lower court decision. Assuming the advocate, in asking, for example, to appeal the decisions of the FISC, is purporting to represent the views of and act as the agent of the "public-at-large" or of those who are targeted by the government's surveillance efforts, the logic of Hollingsworth would lead to the conclusion that the advocate cannot constitutionally do so. First, to the extent the advocate is representing the views of the public-at-large, the advocate would not be representing the views of a particular party who does have standing, but instead would be representing the views of a very "generalized" interest. Moreover, to the extent the advocate purports only to be the agent of those who are harmed in a way by government surveillance that amounts to an injury for constitutional standing purposes, the privacy advocate would very likely not be authorized in any sort of official capacity by those targeted by the government. After all, those targeted by the government under FISA are generally unaware of any specific government surveillance conduct. Additionally, there does not appear to be any of the elements of an agency relationship between the injured party and the privacy advocate, such as the injured party having the ability to control the litigation or potentially remove the advocate, factors that the Hollingsworth Court deemed important to determining whether one could seek judicial relief on behalf of a third party.

It should be noted, however, that Hollingsworth on its face is a case about the standing of a private party defending the constitutionality of the law of a government. Employing a public advocate for FISA proceedings could arguably be distinguished from Hollingsworth on the grounds that the advocate can be viewed, as discussed earlier in this report, as an agent of the government , in that the advocate would be an officer of a government agency and, thus, an agent of a party who does have standing. And the government's "[s]tanding to pursue the general interests of the public" has been "easily recognized" when federal officials seek relief pursuant to a statute. As a consequence, a FISA advocate could arguably have standing to seek judicial relief before the FISC if the position is viewed, in line with Hollingsworth , as one where a government officer, acting in an official capacity was authorized to proceed on behalf of the government in litigation.

Still, there may be problems with the view that the advocate is an agent of the government. First, such an argument is based on the premise that the advocate would be a permanent and continuing government official. This line of reasoning would be significantly undermined if, pursuant to several recent proposals, the advocate was a private attorney who was appointed by the FISC on an ad hoc basis. Second, arguably there is a distinction between an entity that functions as an arm of the government and the ability of that "governmental" entity to seek judicial relief from an Article III court based on the personal rights of someone outside the government. Third, arguing that the advocate is an agent for the government belies a basic assumption that seems to underlie many, if not all, of the public advocate proposals. Specifically, many of the proposals for a FISA advocate envision such a position as being wholly independent from the government and representing the public's privacy rights as an adversary to the government's official position. In other words, far from being controlled by the government, the "essential element of agency" according to the Hollingsworth Court, the public advocate, as envisioned by many proponents of the concept, would be independent from the government and would be arguing against the government's position. While Hollingsworth likely should not be read so broadly as to require that the government's agent be controlled by the executive branch, a reading that could potentially call into question the litigating status of independent agencies, given how the FISA advocate has been envisioned by many proponents, it does appear anomalous to describe the advocate as being an agent of the government.

Intra- or Inter-branch Litigation

Nonetheless, assuming that the FISA advocate can feasibly be viewed as authorized by the government to seek judicial relief before the FISC, such a position may not resolve the constitutionality of allowing the FISA advocate to do more than serve as an amicus curiae . Allowing the FISA advocate to seek judicial relief against another government agent in the same proceeding in a federal court, may raise questions as to whether the proceeding is in line with the underlying principles of separation of powers. Specifically, the Constitution's "case-or-controversy" requirement gives rise to the "long-recognized general principle that no person may sue himself," as federal courts "do not engage in the academic pastime of rendering judgments in favor of persons against themselves." Applying this general principle to the federal government, the Supreme Court has noted that it is "startling" to even propose that there can be "more than one 'United States' that may appear" before a federal court. While the government suffers an injury for constitutional standing purposes when its sovereign interests, as expressed through federal law, are threatened, there is only one sovereign entity that is the United States. And it is questionable whether two agents of the government can litigate against each other in an Article III court with each asserting an injury stemming from a threat to the general sovereign interests of the United States. Indeed, if two agencies of the federal government, with competing views about the sovereign interests of the United States, can have their dispute resolved before a federal court, the fear is that "[s]uch a state of affairs would transform the courts into ombudsmen of the administrative bureaucracy, a role for which they are ill-suited both institutionally and as a matter of democratic theory."

Nonetheless, the "mere assertion" that a legal action "is an 'intra-branch dispute, without more," does not operate to defeat federal jurisdiction. Instead the Supreme Court has cautioned that "courts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented." In this vein, the High Court has found cases to be justiciable that on the surface appear to be intra-branch conflicts. For example, in United States v. ICC , the Supreme Court held that the United States had standing to sue the Interstate Commerce Commission (ICC) in federal court to overturn a Commission order that denied the government recovery of damages for an allegedly unlawful railroad rate, as the dispute, at bottom, would settle who was "legally entitled to sums of money, the Government or the railroads." In other words, instead of being a dispute between two government agents, the dispute involved the government's interests conflicting with those of private entities—the railroads—which were the real parties in interest and actively participating in the case. The Court, in Newport News Shipbuilding , explained ICC's holding in a slightly different sense, emphasizing that the ICC case was justiciable despite being between the various agents of the government because one agency was participating as a "statutory beneficiary" or "market participant" by being subject to the railroad rates set by the ICC. In United States v. Nixon, a "unique[]" conflict between the Watergate special prosecutor and the Chief Executive over the release of subpoenaed tapes, the Court held that the setting of an evidentiary dispute arising from a criminal prosecution assured that the matter was "within the traditional scope of Article III power." Other settings have yielded justiciable intra-branch disputes, including when one agency, acting as an employer, is sued by another agency as enforcer of federal labor laws. Nonetheless, despite these varied exceptions to the rule that the government cannot sue itself, the Supreme Court has not enunciated any formal test for resolving when an Article III court can adjudicate a dispute between two government agencies.

Assuming an office of a public advocate is viewed as a governmental entity, with respect to a proposal allowing the FISA courts to resolve disputes between a public advocate and the DOJ's National Security Division, such proposals may raise Article III justiciability concerns. One can argue, relying on ICC , that the "case" is justiciable because there are "real [private] parties in interest" underlying the dispute. Specifically, the "case" is arguably between the general public (or those members of the public whose privacy rights are threatened) and the government over the latter's foreign surveillance efforts. However, this reading of ICC may conflict with the Supreme Court's more recent interpretations of that case that cast ICC as a dispute where the government agent was operating as a market participant, and only a very broad reading of that reasoning could conclude that the executive branch is "participating in the market" regulated by the FISA advocate. More importantly, the ICC case appears to be legally distinguishable from a dispute over the legal relief being sought by a public advocate. In ICC the dispute was recast as a case over whether railroads had "exacted sums of money from the United States," a clear legal conflict between identifiable parties respecting a concrete monetary injury. Assuming away that the general public as an indistinguishable mass has standing to challenge a given foreign surveillance practice and assuming away that the government can represent a real party in interest in the absence of any form of a legally recognized relationship with that real party, the underlying dispute between the "general public" and the executive branch over foreign surveillance sounds far more like an argument that is generally settled amongst the elected branches and far less like the "justiciable controversy" found in ICC , a "proceeding[] to settle who [was] legally entitled to sums of money," the government or certain railroads. Congress assigning to a government agent the right to assert in federal court a generalized legal right against another governmental entity could potentially thrust federal courts in a role as a "referee of political disputes," a role that could be seen as conflicting with the underlying command of Article III.

The remaining types of cases where a federal court can adjudicate an intra-branch dispute appear to be distinguishable from a dispute between the FISA advocate and the Justice Department, as a case with a public advocate does not, for example, arise out of a criminal prosecution or an intra-branch labor dispute. Instead, an intra-branch dispute involving a public advocate appears to be centered on a dispute with respect to the relative importance of two conflicting sovereign interests—the need to engage in foreign surveillance to protect national security versus the need to protect the privacy rights of the public. Having a federal court be the arbiter of such a dispute may ultimately run afoul of the principle that an Article III court does not adjudicate a dispute between a solitary legal entity.

Moreover, there may be other constitutional issues raised by intra-branch litigation respecting the propriety of foreign surveillance efforts. One could argue that having two entities within the executive branch coming to different conclusions on how the law should be executed violates Article II's provision vesting the executive power of the United States in the President of the United States. After Humphrey 's Executor v. United States , however, Congress can indeed create certain independent agencies run by principal officers appointed by the President, whom the President has limited control over because of "for cause" removal protections, undermining the general argument that having two different voices executing the laws violates Article II. At the same time, however, it should be noted that Humphrey's Executor and its progeny , at bottom, are cases about when Congress could allow "quasi-legislative and quasi-judicial" bodies, as opposed to "purely executive" agencies, "to act.... independently of executive control." Given that the dispute over foreign surveillance arises in the context of national security, it could be argued that the Executive's unique role in protecting national security is a "purely executive" function and cannot be challenged by another government agent. Indeed, the Court has recognized with respect to issues regarding the President's "Commander-in-Chief" powers and foreign concerns, "[i]nstead of acting independently of executive control," Congress has in practice "subordinated" independent agencies to such control. In this sense, it could be argued that a wholly independent FISA advocate with the power to seek judicial relief that may interfere with the President's power to conduct foreign surveillance could raise significant separation of power issues. This, of course, is not meant to suggest that Congress does not have power to regulate foreign affairs or more specifically foreign intelligence gathering practices; rather, a regulation that empowers an independent agency to seek judicial relief that would functionally override or prevent a particular foreign intelligence operation sought by the President could be viewed as an impermissible interference with how the law respecting an area of core executive powers is to be executed. Nonetheless, as one thoughtful commentator has noted, ultimately, the role that independent agencies can play with respect to "foreign affairs activities" pursuant to Article II "may fall into [a] constitutional lacuna," with "[p]olitics, rather than law, adjudicat[ing]" this constitutional question.

Constitutional Issues Raised by Housing the Advocate in the Judicial Branch

Because the ICC line of cases primarily pertains to intra- as opposed to inter -branch litigation and because courts have found that Article III permits a federal court to adjudicate a dispute between two branches in certain circumstances, some proposals have suggested creating an office of a public advocate for the FISA courts in the judicial branch. While housing a public advocate's office in the judicial branch would likely not alleviate concerns over whether the advocate has standing to proceed before a FISA court, such a proposal may also raise important separation of powers concerns with respect to creating an independent agency within the judicial branch. In Mistretta, the Court, in upholding the constitutionality of establishing the Sentencing Commission as an independent agency within the judicial branch, found that separation of powers concerns would counsel against creating an independent agency within the judiciary if one of two conditions existed. Specifically, locating an agency within the judicial branch would violate the doctrine of separation of powers if the agency would either "expand the powers of the Judiciary beyond constitutional bounds by uniting the Branch with" a political power or by "undermining the integrity of the Judicial Branch."

An argument can be made that locating a public advocate in the judicial branch would violate either of these principles. It should be noted that much like the Sentencing Commission in Mistretta , a public advocate housed in the judicial branch would be an auxiliary body whose power was "not united with the powers of the Judiciary," as Article III judges are generally not envisioned as overseeing or monitoring the daily work of a public advocate. Nonetheless, a public advocate, by seeking relief in aid of the legal interests of the United States through litigation before the FISA courts, arguably is functioning much like his counterparts in the DOJ in executing the laws of the United States, a power that is generally reserved to the executive branch. Moreover, in contrast to Mistretta , where the Court found that the Sentencing Commission merely formalized the "everyday business of judges" in carrying out sentencing decisions, with respect to the public advocate proposals that go beyond formalizing the role that the FISC court's legal advisors currently play, allowing members of the judicial branch to actively seek judicial relief in aid of the general public would appear to enhance the current role that the third branch has in enforcing the law. However, it should be noted that courts embracing a more functionalist approach to separation of powers questions may not be as concerned with allowing the judicial branch to litigate on behalf of the United States when the underlying purpose of the litigation is to protect civil liberties and ensure that all views are considered by the court.

Likewise, locating a public advocate within the judicial branch could be seen as being inconsistent with the role of federal courts to impartially resolve certain cases and controversies. The Supreme Court has recognized that Congress can assign the "courts or auxiliary bodies within the Judicial Branch" certain "extrajudicial activities" that have a "close relation to the central mission of the Judicial Branch." A public advocate tasked with a duty to represent a distinct viewpoint that opposes the government's foreign surveillance efforts may be casting the judicial branch into the role of advocate, as opposed to neutral arbiter. Moreover, unlike the housing of the Sentencing Commission in the judicial branch, which was in line with the "Judiciary's special knowledge and expertise" about criminal sentencing, locating an advocate who argues against government foreign surveillance efforts in the judicial branch would be giving the branch power in an area in which the judiciary generally has no special expertise, a concern of the Morrison and Mistretta courts. Nonetheless, because of the novelty of housing an agency with independent litigating authority within the judiciary, there is a lack of precedent to confirm how exactly a court would approach the relevant separation of powers issues.

Public Advocate and the Appeals Process

Given the constitutional concerns raised by vesting a public advocate with the power to seek relief from a federal court, some have suggested that instead of solely relying on an advocate to appeal a decision by the FISC, that the FISC's decisions or parts of their decisions be automatically reviewed by the Foreign Intelligence Surveillance Court of Review or the Supreme Court. There is a dearth of federal law allowing for an automatic appeal that is not initiated by a party. While Congress generally has broad authority to regulate the practices of federal courts, it appears at the very least questionable that a federal appellate court could hear an appeal in which no party to the case in the lower court wishes for an appeal to proceed, raising the specter of the court ruling outside of a case or controversy. In state courts that adhere to similar rules regarding standing as the federal judiciary, courts have not allowed a case to proceed on an automatic appeal when only an amicus wishes the case to continue.

Moreover, if the result of an automatic appeal procedure would be to automatically stay the FISC's ruling or part of its ruling until affirmed by a higher court, such a proposal may raise other constitutional concerns. Article III "gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy – with an understanding, in short, that 'a judgment conclusively resolves the case' because 'a 'judicial Power' is one to render dispositive judgments.'" While Congress may constitutionally "intervene and guide or control the exercise of the courts' discretion," including by "amend[ing] applicable law," the legislature cannot "prescribe rules of decision to the Judicial Department of the government in cases pending before it." More broadly, "no decision of any court of the United States can, under any circumstances, ... be liable to ... suspension, by the legislature itself, in whom no judicial power of any kind appears to be vested." In other words, congressional enactments that would automatically suspend the legal effect of an Article III court's order may be seen as threatening the underlying "power and duty of those courts to decide cases and controversies properly before them." While the Supreme Court has upheld statutes authorizing a temporary suspension of an order by a federal court when premised on a change in the underlying substantive law, a provision that would automatically prevent the FISC's orders from ever having legal effect until another court reviews that order may be seen as rendering an Article III court into a mere "adjunct" of the FISA Court of Review and, more generally, could be seen as a usurpation by Congress of the judicial function of deciding cases on the merits with finality.

Other proposals are aimed at increasing appellate review of FISC decisions. For example, some have suggested allowing the FISC to certify, at the request of a public advocate, pure questions of law for review or an entire case by the Foreign Intelligence Surveillance Court of Review or the Supreme Court. Certifying pure questions of law to another court usually occurs in the context of a federal court seeking the opinion of a state court on a question of state law. When the "question is certified, the responding court does not assume jurisdiction over the parties or over the subject matter," and, instead, the certifying court retains the "right to determine actual controversies arising between adverse litigants." Such a procedure when utilized to seek answers pure questions of law posed by another federal court may raise constitutional problems. As one former member of the Foreign Intelligence Surveillance Court of Review has discussed, by allowing federal courts to respond to certified questions on a generalized issue of law, the responding federal court, in answering a general question of law, may be violating Article III's bar against federal courts issuing advisory opinions. Of course, a reviewing court could review the entire record of a case at once with a certification, removing the specter of the reviewing court is only responding to abstract or hypothetical questions. Moreover, a persuasive argument could be made that a court accepting a question of law on certification in an on-going case-or-controversy is still exercising the judicial power in a manner that is consistent with the requirements of Article III.

Regardless if the certification is for a pure question of law or for review of an entire case, a more fundamental concern with respect to certifying appeals is the means by which a certification occurs. If one assumes the FISA advocate does not have standing to seek judicial relief from a federal court, a proposal that provides a non-party relief through granting a motion to certify an appeal may run afoul of Article III's requirement that a federal court may only exercise its judicial power in favor of a party who has "shown an injury to himself that is likely to be redressed by [the] favorable decision." In other words, as discussed above, it is unclear how a federal court can constitutionally grant judicial relief to a standingless non-party. There are, of course, existing procedural mechanisms that allow an appeal to be certified from one court to a higher court, but such mechanisms typically function as a condition precedent or subsequent to an appeal by a party with standing. There does exist an "almost completely unused device" that allows a circuit court to certify "any question of law in any civil or criminal case" to the Supreme Court. Regardless of whether this mechanism can be used sua sponte by a lower court to functionally allow a non-party's appeal to be heard, placing the discretion of when an appeal of a FISC order can occur in the hands of the court that just issued the opinion could arguably be seen as an ineffective way of garnering more appeals of the government's requests for surveillance.

Conclusion

In enacting FISA in 1978, Congress attempted to reconcile the inclusion of federal courts in the process of approving executive branch foreign surveillance requests with the demands of the Constitution and the secrecy required for foreign intelligence gathering. A robust debate began during FISA's enactment and continued in its aftermath, with a host of different Article III courts interpreting the legality of the 1978 law. While the Supreme Court has not opined specifically on many of the issues raised during the debates over FISA, in the decades following the passage of FISA, lower courts, after hearing several challenges to the law, have largely concurred on the legality of the original FISA judicial review process. In the wake of the June 2013 revelations about some of the specific tools used in federal foreign surveillance efforts, a wide range of public advocate measures have been proposed, aiming to reform the FISA judicial review process by adding a public advocate in FISA proceedings to ensure that differing points of view are presented to the FISA courts. Just as with the original debate over the 1978 law, the public advocate proposals have and will likely continue to generate a robust legal debate, and the legality of any public advocate proposal enacted into law may ultimately be a matter to be resolved by the courts. The Director of the Administrative Office of the United States Courts, in consultation with the current members of the FISA courts, has already expressed concerns with several advocate proposals and has described some proposals as potentially raising "substantial standing and other constitutional issues," suggesting that an advocate proposal enacted into law may be scrutinized by the FISA courts themselves. As a result, any consideration of a proposal altering the process by which the FISA court reviews executive branch foreign intelligence surveillance requests may be informed by an understanding of the limits that the Constitution imposes.

Nonetheless, this is not to say that any hurdle imposed by the Constitution that is implicated by a public advocate proposal is insurmountable or even applicable with respect to every FISA advocate measure. At the same time, the Constitution does impose some limits that may be considered during the debates over whether to include an advocate in the FISA process. These constitutional limits if ignored or easily dismissed could render a law subject to judicial review. Ultimately, the proverbial "devil is in the details," and the vast range of public advocate proposals cannot be understated. Some proposals envision a broad role for a permanent advocate who reviews every FISA surveillance request, seeks discovery from the executive branch, asks the FISC to reconsider previous orders, or appeals orders of the FISA courts that are adverse to certain civil liberty interests. Other proposals are more restricted in nature, suggesting that the FISA court can at its own discretion and on an ad hoc basis, seek input from private party advocate amici . While there are no clear answers that exist to the novel questions raised by the establishment of an office for a FISA public advocate, generally the more modest and confined the role of the advocate in a given proposal is, the more likely that proposal, if made into law, would raise fewer constitutional issues. And, of course, there are means beyond formally adding another party into the FISA courts' judicial review process that could potentially help accomplish the overarching goal of ensuring that the government's surveillance applications are thoroughly scrutinized that do not raise similar constitutional concerns as some of the broadest public advocate proposals.