Last week, WIRED confirmed that Senator John Cornyn, whose committee assignments include both judiciary and intelligence, was the source of an objection to the new amicus language, threatening to scuttle the changes. Another Senate source with knowledge of the objection says that Cornyn is specifically concerned about delays that he believes will result from the court’s increased reliance on the amici, viewing the process as potentially tying up cases in discovery battles as experts vie with the government for access to classified files.
The source adds that Cornyn claims the new rules threaten to grant foreign nationals greater rights than those of criminal defendants, something that foreign adversaries could exploit. It is unclear, however, by what method Cornyn believes a foreign adversary might gain insight into the court’s proceedings. Information presented in the hearings are among the nation’s most closely guarded secrets.
Noah Chauvin, a former intelligence counsel for the US Department of Homeland Security, dismissed Cornyn’s concerns as overblown and, in some cases, invalid. “In almost every instance, the presumption that amici will be appointed applies to a circumstance where the surveillance targets a US person,” he says. The only exception is when the surveillance presents a “novel or significant interpretation of the law.”
Even when amici avail themselves of new appellate rights laid out in the provision, however—after objecting, for instance, to a new method of surveillance certified by the court—the process would not inhibit the government from continuing to intercept communications under FISA. Instead, the surveillance would continue under the last certification issued by the court, even if it has already expired.
Amici’s right to access information is relatively narrow, says Chauvin, now an assistant professor at the Widener University Commonwealth Law School in Pennsylvania. He notes that the government has the ability to prevent delays at any time by simply providing experts with the information they need in advance, rather than forcing the court to debate what it’s required to disclose. While relying on constitutional experts more frequently may slow down the process in certain instances, he says, that is also largely the point. “To the extent [amici] create friction, making it more difficult for the government to access Americans’ private information without demonstrating to a court that such access is necessary—that’s a feature, not a bug.”
Notably, FISA proceedings are, for obvious reasons, conducted ex parte, meaning the target of a surveillance order has no presence or representation in court. This arguably heightens the need for the court to rely on advice from subject matter experts when it’s confronted with unprecedented uses of communications technologies, which are constantly evolving.
WIRED reached out to the White House, National Security Council, and Office of the Director of National Intelligence for comment on the possible fate of provisions, but has not received a response.
With regards to other concerns raised by Cornyn, such as the fact that the amici are not required to have specific intelligence-collection experience, Senate sources defending the new text noted that’s nothing new. While some experts called up by the FISA court have that experience, others are tapped for their knowledge of privacy and civil liberties or their expertise in communications technology. Ultimately, it’s the court’s prerogative to determine what “legal or technical expertise” is necessary depending on the matter at hand, so long as that person is “eligible for access to classified information.”
