Impact of Amicus Curiae in FISA Proceedings
Last week, Wired confirmed that Sen. John Cornyn, whose committee responsibilities include the judiciary and intelligence agencies, expressed objections to the new amicus language and threatened to derail the changes. Another Senate source familiar with the objections said Cornyn was particularly concerned about delays caused by the court’s increased reliance on amicus curiae, a process he argued could plunge cases into discovery as experts compete with the government for evidence.
Concerns Over Foreign Adversaries and Legal Rights
Cornyn claimed the new rules could give foreigners greater rights than criminal defendants, which could be exploited by foreign adversaries. However, it is unclear how Cornyn believes foreign adversaries could gain access to the court proceedings. Noah Chauvin, a former intelligence adviser at the U.S. Department of Homeland Security, dismissed Cornyn’s concerns as overblown and ineffective.
Impact on Surveillance and Access to Information
Chauvin pointed out that the government has the ability to prevent delays by providing experts with the necessary information in advance. While more reliance on constitutional experts may slow down the process, it serves the purpose of creating friction to ensure that the government cannot access private information without proper court approval.
Role of Subject Matter Experts in FISA Proceedings
It is important to note that FISA proceedings are conducted ex parte, increasing the need for courts to rely on subject matter expert advice. Experts summoned by the FISA Court have a range of experiences, including knowledge of privacy and civil liberties, as well as expertise in communications technology.
