	Introduction

Recent controversies over the nature of the government's foreign surveillance activity have prompted some to argue that the judiciary's review of government surveillance requests under the Foreign Intelligence Surveillance Act of 1978 (FISA) should be far more exacting. This report will explore the novel legal concept that is the public advocate and discuss several major constitutional issues surrounding the FISA advocate idea, highlighting relevant issues to consider, including what is the legal role of a public advocate; how a FISA advocate can be constitutionally appointed; and whether employing a public advocate before a federal court adheres to the demands of the United States Constitution. In the wake of the recent revelations regarding the size and scope of the government's foreign surveillance activities, lawmakers and others have suggested transforming FISA proceedings such that the process is more adversarial in nature. In other words, a public advocate would "represent the privacy and civil liberties" interests of the general public by advocating for "legal interpretations that minimize the scope of surveillance and the extent of data collection and retention." As a public advocate would be representing a generalized interest divorced from any particular individual's harm, the FISA advocate's role is likewise distinguishable from that of a public defender in an ordinary criminal case. Appointment of a Public Advocate

Assuming that a permanent office of a FISA public advocate is an arm of the government and subject to the general requirements of the Constitution, several constitutional questions are raised by the proposals establishing such an entity. Appointments Clause

The Appointments Clause establishes that the President:
shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Would a Public Advocate be a Principal or Inferior Officer? A unifying theme behind all of the proposals creating an office of the public advocate is to ensure that the advocate is independent from other entities within the executive branch, who would, presumably, be seeking an order from the FISA court authorizing foreign surveillance activities. Inter-branch Appointments and the Public Advocate

Assuming that the Supreme Court, in analyzing the appointments question presented by establishing a public advocate, abandons the Edmond test in favor of the Morrison approach such that a permanent public advocate could be an inferior officer, an additional issue is raised for those proposals that would allow the advocate, who is arguably acting in an executive role, to be appointed by the courts of law. Article III Issues Raised by a FISA Public Advocate

Apart from issues raised by the Appointments Clause of the United States Constitution, Article III of the Constitution, which vests the judicial power of the United States in the Supreme Court and any inferior courts created by Congress, also poses significant legal questions with respect to proposals creating a FISA public advocate. Government applications for warrants are always ex parte . Generally, whenever an individual "invo[kes] ... [a] federal court['s] jurisdiction" and formally asks an Article III court to exercise its "remedial powers on his [or her] behalf," the Supreme Court has "consistently ... required" that the "party seeking judicial resolution of a dispute 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct" of the other party. The statement from Bowsher has been interpreted to mean that the "presence of one party with standing is sufficient to satisfy Article III's case-or-controversy requirement," allowing "standingless" parties to continue to participate in the proceeding. Specifically, many of the proposals for a FISA advocate envision such a position as being wholly independent from the government and representing the public's privacy rights as an adversary to the government's official position. Intra- or Inter-branch Litigation

Nonetheless, assuming that the FISA advocate can feasibly be viewed as authorized by the government to seek judicial relief before the FISC, such a position may not resolve the constitutionality of allowing the FISA advocate to do more than serve as an amicus curiae . Assuming away that the general public as an indistinguishable mass has standing to challenge a given foreign surveillance practice and assuming away that the government can represent a real party in interest in the absence of any form of a legally recognized relationship with that real party, the underlying dispute between the "general public" and the executive branch over foreign surveillance sounds far more like an argument that is generally settled amongst the elected branches and far less like the "justiciable controversy" found in ICC , a "proceeding[] to settle who [was] legally entitled to sums of money," the government or certain railroads. Instead, an intra-branch dispute involving a public advocate appears to be centered on a dispute with respect to the relative importance of two conflicting sovereign interests—the need to engage in foreign surveillance to protect national security versus the need to protect the privacy rights of the public. If one assumes the FISA advocate does not have standing to seek judicial relief from a federal court, a proposal that provides a non-party relief through granting a motion to certify an appeal may run afoul of Article III's requirement that a federal court may only exercise its judicial power in favor of a party who has "shown an injury to himself that is likely to be redressed by [the] favorable decision."
Recent revelations about the size and scope of government foreign surveillance efforts have prompted some to criticize the level of scrutiny that the courts—established under the Foreign Intelligence Surveillance Act of 1978 (FISA)—currently provide with respect to the government's applications to engage in such surveillance. In response to concerns that the ex parte nature of many of the proceedings before the FISA courts prevents an adequate review of the government's legal positions, some have proposed establishing an office led by an attorney or "public advocate" who would represent the civil liberties interests of the general public and oppose the government's applications for foreign surveillance. The concept of a public advocate is a novel one for the American legal system, and, consequently the proposal raises several difficult questions of constitutional law.
First and foremost is the question of what is the legal nature of the office of a public advocate. Some may argue that the advocate is functioning as a non-governmental entity, much like a public defender in an ordinary criminal prosecution, in serving as an adversary to the government's position. On the other hand, a public advocate, unlike a public defender, would not be representing the views of any particular individual, but rather the general interests of society in ensuring that the government's foreign surveillance efforts adequately protect the public's privacy rights. Given that a public advocate can potentially be deemed an agent of the government, perhaps as a member of the executive branch, the advocate could be viewed as an office that is subject to the general requirements of the United States Constitution.
Among these requirements is Article II's Appointments Clause that requires that "principal officers" of the United States be appointed by the President and confirmed with the advice and consent of the Senate and "inferior officers" be appointed by the President, the courts of law, or the Heads of Departments. Depending on the scope of the authority and the supervisory controls provided over the FISA advocate's office, the lawyer who leads such an office may be a principal or inferior officer of the United States whose appointment must abide by the Appointments Clause's restrictions.
Moreover, Article III of the Constitution which vests the judicial power of the United States in the courts of law over certain "cases" or "controversies" may also restrict the role of a public advocate. The nature of the FISA courts and their analogous position to how federal courts approve ordinary search warrants may arguably limit the application of Article III's case-or-controversy requirement to FISA proceedings. Nonetheless, Article III typically requires that parties asking a federal court to exercise its remedial powers on his or her behalf must either (1) have personally suffered some actual or threatened injury as a result of the putatively illegal conduct of the other party before the court or (2) be authorized by or have some other connection to a party that has suffered such an injury to represent that entity. It is at the very least doubtful that a public advocate has either personally suffered a constitutionally sufficient injury or been properly authorized by or has a close relationship with an entity that has suffered a constitutionally sufficient injury. While a more permanent advocate could be potentially viewed as representing a sovereign interest in ensuring the privacy rights of the general public and could be viewed as having standing to assert that interest, such a position may raise other constitutional issues. For example, Article III generally prevents the government from litigating against itself, making it constitutionally problematic to have an intra-branch dispute over foreign surveillance resolved by a federal court. In addition, Article II has been interpreted to prevent the establishment of purely executive functions in independent entities, and, arguably, allowing a public advocate protected by "for cause" removal restrictions to seek judicial relief on an issue of national security could invade core executive branch prerogatives. In other words, allowing a public advocate to formally seek judicial relief from an Article III court may present serious constitutional questions. Instead, a more modest proposal that would allow an advocate to generally share its views of the law as a friend of the court or amicus curiae is far less likely to run afoul of the Constitution's restrictions.
Other constitutional questions are prompted by FISA public advocate proposals. For example, separation of powers concerns that no branch should aggrandize itself at the expense of a co-equal branch may prevent a public advocate from being housed within the judicial branch. Likewise, Article III of the Constitution may present an obstacle to efforts that would make appeals of FISA court decisions more frequent. Notwithstanding these concerns, there do exist constitutionally permissible means to ensure that the executive branch's foreign surveillance practices are thoroughly vetted and scrutinized. This report will explore all of these difficult constitutional issues prompted by the idea of making FISA court proceedings more adversarial.