Hastings Law Journal


Peter Margulies


This Article outlines a dynamic conception of national security surveillance that justifies programs disclosed by Edward Snowden but calls for greater transparency and accountability in the wake of Snowden’s revelations. The dynamic conception supports the legality of section 215 of the USA Patriot Act and section 702 of the Foreign Intelligence Surveillance Act (“FISA”), programs that received informed input from all three branches of government. Each program is part of a long democratic experiment in the integration of secrecy, deliberation, and strategic advantage that dates to the Constitution’s framing. Both programs reflect Congress’s concern that intelligence collection be sufficiently agile to keep up with evolving threats. The Foreign Intelligence Surveillance Court (“FISC”) required that both programs use technology not only to collect data, but also to prevent unduly intrusive government use of that data. However, even though both section 215 and section 702 were legal in their pre-Snowden iterations, changes are now necessary to ensure the programs’ legitimacy. Legislation sponsored by Senator Patrick Leahy modifies section 215 by leaving private data in the hands of telecommunications companies and authorizes the FISC to appoint amici to represent the public interest. On the FISC process front, the Leahy bill is a welcome first step, but does not go far enough. A more robust public advocate whose participation does not require permission by the FISC would provide a more meaningful check on the government. This Article argues that a more robust public advocate could withstand constitutional objections based on Article III and the Appointments Clause of the Constitution, and enhance domestic and international faith in the FISC’s deliberations.

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