Jul 082013
 July 8, 2013  Court, Laws, Surveillance, U.S.

In the second part of his response to a New York Times article by Eric Lichtblau on the FISA Court, Orin discusses ideas to revamp the procedures:

Here’s one tentative proposal on what such a procedure could look like. Congress could amend the FISA statute to create a new role for the Oversight Section of the National Security Division at DOJ. The Oversight Section should have a right to file a motion to oppose any application before the FISC. The motion to oppose must be filed within a certain number of days after the application has been made. It will be accompanied by legal briefing explaining why the application should not be granted. Alternatively, if the application has already been granted, the motion should explain why the issued order should be quashed or withdrawn. Under the statute, the FISC should have to entertain the motion to oppose and deny the application if the order would be contrary to statutory or constitutional law. The statute should also have a way to determine the facts. Perhaps the facts in the application should be taken as determinative, subject to review based on a deferential standard such as “clearly erroneous.” Or perhaps the two sides should be ordered to submit their proposed facts and the FISC can choose between them. Either way, there should be a way of settling the relevant facts and some kind of adversarial briefing on the legal issues, along the lines of the procedures currently found in 50 U.S.C. 1881a(i). The FISC can then issue an opinion deciding whether to grant the motion and deny/withdraw the order.

Read more on The Volokh Conspiracy.

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