Amicus Curiae: A Controversial Topic in U.S. Senate
Last week, Wired confirmed that Sen. John Cornyn, whose committee responsibilities include the judiciary and intelligence agencies, expressed objections to the new amicus language and threatened to derail the changes. Another Senate source familiar with the objections said Cornyn was particularly concerned about delays caused by the court’s increased reliance on amicus curiae, a process he argued could plunge cases into discovery as experts compete with the government for evidence.
Debunking Senator Cornyn’s Concerns
Cornyn claimed the new rules could give foreigners greater rights than criminal defendants, which could be exploited by foreign adversaries, the sources added. However, it is unclear how Cornyn believes foreign adversaries could gain access to the court proceedings. The information presented at the hearing is one of the nation’s best-kept secrets.
Noah Chauvin, a former intelligence adviser at the U.S. Department of Homeland Security, dismissed Cornyn’s concerns as overblown and, in some cases, ineffective. “In almost all cases, the presumption of Amici’s appointment applies to surveillance of Americans,” he said. The only exception is when surveillance proposes “a novel or significant interpretation of the law.”
The Impact of Amicus Curiae on Surveillance Proceedings
However, even if amicus curiae takes advantage of the new appeal rights provided in the provision—for example, after objecting to a new surveillance method endorsed by the court—this proceeding will not prevent the government from continuing to intercept communications under the FISA. Instead, surveillance will continue based on the last certificate issued by the court, even if that certificate has expired.
Chauvin, now an assistant professor at Widener University School of Law in Pennsylvania, said Amici’s right to access information was relatively narrow. He pointed out that the government has the ability to prevent delays at any time by providing experts with the information they need in advance, rather than forcing courts to debate the information that needs to be disclosed.
It is important to note that, for obvious reasons, FISA proceedings are conducted ex parte, meaning that the target of the surveillance order does not appear in court or be represented in court. Arguably, this may increase the need for courts to rely on subject matter expert advice as they face unprecedented uses of evolving communications technologies.
Conclusion: Amicus Curiae in the U.S. Judicial System
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 these provisions but has not yet received a response.
As for other concerns raised by Cornyn, such as the need for amicus curiae to have specific intelligence-gathering experience, Senate sources defending the new text noted that this is nothing new. While some of the experts summoned by the FISA Court have such experience, others are favored for their knowledge of privacy and civil liberties or expertise in communications technology.
Ultimately, the court has the power to determine what “legal or technical expertise” is required based on the case at hand, so long as the person is “qualified to have access to the confidential information.”
