On November 4, Marc Zwillinger was one of only two non-academic private attorneys invited to participate at the second public hearing of the Privacy and Civil Liberties Oversight Board. Mr. Zwillinger discussed recommendations for changes to the Foreign Intelligence Surveillance Court on a panel with James A. Baker (formerly DOJ Office of Intelligence and Policy Review) and Judge James Carr (Senior Federal Judge, U.S. District Court, Northern District of Ohio and former FISA Court Judge 2002-2008).
In his comments, Mr. Zwillinger highlighted two aspects of the FISA process that are ripe for reform: the overbroad cloak of secrecy that applies to everything FISA-related and the lack of a true adversarial process. He emphasized that technology companies and internet service providers are in the unique position of being able to challenge potentially overbroad government orders, yet must “toil in secrecy and fight in the court with one hand tied behind their back,” due to the time pressure and gag orders that accompany these demands. Further, “when providers do bring a challenge, trying to meaningfully litigate in an adversarial way in the FISA Court is an uphill battle. …The logistics of handling classified litigation are very difficult, and filing documents with the court frankly has always been a little bit like trying to get a letter to Santa Claus. It requires a lot of blind faith.”
Throughout the discussion, Mr. Zwillinger returned to the concept of a neutral “special advocate” to challenge the government in some of the FISA Court proceedings. He explained the goal of an adversarial proceeding is not to make it more difficult for the government to protect the country, but rather to ensure that Constitutional issues are adequately considered and balanced against the nation’s security needs. Further, “judges are used to making decisions after hearing both sides of an argument. That’s the way our system is structured and that’s what makes the decisions informed and legitimate.”
For more of Mr. Zwillinger’s comments, a video webcast of the panel is available online through C-SPAN, and the PCLOB has published a full transcript of the day’s hearing.
