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. 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. 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.