Two law professors defended the constitutionality of appointing...
Two law professors defended the constitutionality of appointing a constitutional advocate to participate before the Foreign Intelligence Surveillance Court. Georgetown University Law Center Professor Marty Lederman, a former deputy assistant attorney general, and American University Washington College of Law Professor…
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Steve Vladeck, a co-editor-in-chief of Just Security, outlined their arguments in a Just Security blog post Monday (http://bit.ly/1b1Yx0a). They responded to an Oct. 25 Congressional Research Service report (http://bit.ly/17KJKrV), prepared for members of Congress, examining the constitutionality of such a FISC advocate, a position which has been proposed in multiple bills to change surveillance law this year. “The concept of a public advocate is a novel one for the American legal system, and, consequently the proposal raises several difficult questions of constitutional law,” that report said. But “as long as Congress provides that such an advocate would be merely another lawyer participating in proceedings before the FISA Court and FISA Court of Review (either as an amicus or as a representative of third parties), such a reform should not raise any new constitutional concerns, at least so long as the advocate is not afforded a statutory right on her own behalf to appeal FISC decisions,” Lederman and Vladeck argued.