Concerns about the New Amicus Language in FISA Court
Last week, Wired reported that Sen. John Cornyn raised objections to the new amicus language in the FISA Court, expressing concerns about potential delays and foreign adversaries exploiting the rules.
Sen. Cornyn’s Objections
Sen. Cornyn, whose responsibilities include the judiciary and intelligence agencies, argued that the changes could lead to delays as experts compete with the government for evidence. He also claimed that the new rules could give foreigners greater rights than criminal defendants, raising concerns about national security.
Response to Cornyn’s Concerns
Noah Chauvin, a former intelligence adviser, dismissed Cornyn’s concerns as overblown, highlighting that the presumption of Amici’s appointment primarily applies to surveillance of Americans. He also pointed out that the government can prevent delays by providing experts with necessary information in advance.
Implications of the New Amicus Language
Despite potential delays in some cases, the increased reliance on constitutional experts in the FISA Court serves the purpose of creating friction and ensuring that the government must justify access to Americans’ private information. FISA proceedings conducted ex parte may further increase the need for subject matter expert advice due to evolving communications technologies.
