FISC Makes Far Better Amicus Choices Than I Expected

I’ve long been skeptical about the potential efficacy of the amicus provision in USA Freedom Act, especially because the government can always withhold information.

But the FISC (and FISCR’s, they make clear) choices for potential amici is far better than I expected.

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Laura Donohue, besides being an important voice on surveillance reform, is one of the few people who has as weedy an understanding of the details of the surveillance programs as I do. Plus, unlike me, she can argue the legal aspects of it with authority.

Marc Zwillinger has represented at least one corporation — Yahoo, in its 2007-8 challenge to Protect American Act — before FISC already (as well as an industry push for the right to provide more transparency numbers), and is currently representing Apple in an EDNY discussion about back doors. He even has experience not receiving notice of unclassified details necessary to his arguments before FISC!! At a PCLOB hearing on this topic, he and others predicted he’d likely be among those picked. Voila!

John Cline is probably best known to readers of this blog for the representation he gave Scooter Libby. But he did so because he has represented a wide range of defendants dealing with classified information — he’s one of the best on such issues. That perspective is one that even most (though not all) judges on the FISC lack, and I’m impressed they would let someone have vision on both processes.

Jonathan Cedarbaum was acting head at OLC for a while, though mostly worked on domestic policy issues. Though I think he did work on some cybersecurity issues. The closest tie I know of to counterterrorism came in his role on the Boumedienne case, for which he was targeted by right wingers while at DOJ.

I’m perhaps least thrilled about Amy Jeffress (whose father also represented Scooter Libby) on the panel. She has a ton of experience on all kinds of national security cases — but overwhelmingly as a prosecutor. She almost got the Assistant Attorney for National Security job until it was given to John Carlin. While a top advisor to Eric Holder, she likely saw some things that might get debated at FISC (in the same way Rachel Brand and Elisabeth Collins Cook were involved in things at DOJ during the Bush Administration that PCLOB has reviewed), which might lead her to be more invested in the government outcome than I’d like. But from everything I know she’s a very good lawyer.

All in all, a far better collection of lawyers than I expected, and any of them is a better choice than Preston Burton.

 

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

3 replies
  1. bmaz says:

    Donohue, Zwillinger and Cline are fine choices. I especially like Cline being in there, he is a full on criminal defense attorney and is tenacious. Also used to partner with Nancy Hollander, who I love. Less thrilled about Cedarbaum and Jeffress, both of which I could quite easily do without.

    • emptywheel says:

      Yes, Zwillinger and Donohue are getting the love from reformers but I think even among FISC judges there’s too little visibility into what defendants actually get in FISC cases (Michael Mosman is a key exception), which makes them unable to assess whether this stuff could be constitutional. Having Cline there — and having Cline continue to represent defendants having been there — will be really critical .

      I would have rather have had a technologist than the two DOJ insiders, yes. Any bets the insiders end up being the ones who always get chosen to given their viewpoint?

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