The source adds that Cornyn claims the new rules threaten to grant foreigners greater rights than defendants in criminal proceedings, something that foreign adversaries could exploit. However, it is unclear by what method Cornyn believes a foreign adversary could gain information about court proceedings. Information presented at hearings is among the country’s most closely guarded secrets.
Noah Chauvin, a former intelligence adviser to the US Department of Homeland Security, dismissed Cornyn’s concerns as overblown and, in some cases, invalid. “In almost every case, the presumption that an amici will be appointed applies to a circumstance where surveillance targets an American person,” he says. The only exception is when the surveillance presents a “novel or significant interpretation of the law.”
However, even when amici exercise the new appeal rights under the provision (for example, after objecting to a new court-certified surveillance method), the process would not prevent the government from continuing to intercept communications under FISA. Instead, surveillance would continue under the latest court-issued certification, even if it has already expired.
The amici’s right to access information is relatively limited, says Chauvin, now an adjunct professor at Widener University Commonwealth Law School in Pennsylvania. He notes that the government has the ability to avoid delays at any time by simply providing experts with the information they need in advance, rather than forcing the court to debate what it is required to disclose. While relying on constitutional experts more frequently may slow down the process in certain cases, he says, that is also largely the point. “To the extent that (friends) create friction, making it harder for the government to access Americans’ private information without proving in court that such access is necessary: that’s a feature, not a bug.”
It should be noted that, for obvious reasons, FISA proceedings are conducted ex parte, meaning that the target of a surveillance order has no presence or representation in court. This undoubtedly increases the need for the court to seek expert advice in the field when faced with unprecedented uses of communications technologies that are constantly evolving.
WIRED reached out to the White House, the National Security Council, and the Office of the Director of National Intelligence for comment on the possible fate of the provisions but did not receive a response.
As for other concerns raised by Cornyn, such as the fact that amici are not required to have specific intelligence-gathering experience, Senate sources defending the new language noted that this is nothing new. While some experts called by the FISA court have such experience, others are selected for their knowledge of privacy and civil liberties or their experience in communications technology. Ultimately, it is the court’s prerogative to determine what “legal or technical expertise” is necessary based on the matter at hand, as long as that person is “eligible to access classified information.”
Experts and multiple Senate sources noted that the amicus clause approved by the Senate Intelligence Committee last month was actually a watered-down version of an amendment introduced by Sens. Mike Lee and Patrick Leahy four years ago. For example, that amendment would have directed the FISA court to appoint an amicus in cases where the government sought to surveil a congressional staffer, which is no longer the case. Those “sensitive investigative matters” now extend exclusively to elected officials and political candidates, as well as members of political, news and religious organizations.
