Jul 232013
 
 July 23, 2013  Court, Featured News, Surveillance, U.S.

James G. Carr, a senior federal judge for the Northern District of Ohio, served on the Foreign Intelligence Surveillance Court (FISC) from 2002 to 2008. He has an OpEd in the New York Times responding to recent criticisms of FISC for lack of representation of the targets of surveillance order applications. And whereas one former judge has called for introducing an adversarial element into the proceedings to represent the public, Judge Garr goes even further:

James Robertson, a retired federal judge who served with me on the FISA court, recently called for greater transparency of the court’s proceedings. He has proposed the naming of an advocate, with high-level security clearance, to argue against the government’s filings. He suggested that the Privacy and Civil Liberties Oversight Board, which oversees surveillance activities, could also provide a check. I would go even further.

In an ordinary criminal case, the adversarial process assures legal representation of the defendant. Clearly, in top-secret cases involving potential surveillance targets, a lawyer cannot, in the conventional sense, represent the target.

Congress could, however, authorize the FISA judges to appoint, from time to time, independent lawyers with security clearances to serve “pro bono publico” — for the public’s good — to challenge the government when an application for a FISA order raises new legal issues.

Read more on the New York Times.

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