Sep 172014
 
 September 17, 2014  Court, Surveillance, U.S.

Law professor Don Wallace Jr. writes:

…. some have claimed that requiring the FISC to hear from a special advocate in this narrow class of proceedings would raise constitutional concerns under the “case or controversy” requirement of Article III. As a general matter, our federal courts may only decide live cases or controversies between adverse parties with standing to litigate the case. The proceedings before the FISC, however, do not involve adverse parties yet have long been considered analogous to the historical role that our courts have played in issuing warrants. Our courts have repeatedly upheld such proceedings, including those conducted by the FISC, as consistent with Article III. Allowing the FISC to hear from an additional attorney during the process does not create a new Article III question. Any concerns stem from the nature of the FISC process itself, not from the participation of a special advocate tasked with promoting privacy and civil liberties. If anything, the participation of a special advocate increases the adverseness of the proceedings and helps ensure compliance with Article III.

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