The FISC can “appoint an individual to serve as amicus curiae to assist in the consideration of any application for an order or review that, in the opinion of the court, presents a novel or significant interpretation of the law.” Hence, the Court has the option to engage in an adversarial proceeding when determining the legality/necessity of foreign intelligence warrants. The law explicitly requires the appointed “friend of the court” to provide “legal arguments that advance the protection of individual privacy and civil liberties” (50 U.S. Code §1803 (i)(2)(A)).
The authorization of a surveillance operation becomes more robust if adversarial council is made available to the authorizing (or approving) body at the decision-making point in time. Hearing only one side of the argument invites regulatory capture. Therefore, the FISC maintains a pool of designated legal counsels, from which the Court may appoint an individual amicus curiae for a specific case. Requesting external expertise from such amici offers a fresh view on a significant or new legal matter and helps to avoid tunnel vision while enhancing the input legitimacy of the process.
The mere indication that the FISC intends to appoint an amicus curiae has already proven to have had a deterrence effect on the executive branch. According to the FISA Annual Report 2017, no amicus was appointed during that year. Yet, the Court considered appointing a person three times, but in all three cases, the government ultimately did not proceed with the proposed application or modified the final application “such that they did not present a novel or significant question of law, thereby obviating a requirement for consideration as to the appropriateness of appointment of amicus.” This said, the opinions presented by an amicus curiae need not be “adversarial.” They may also bolster the government’s argument, for example with technical aspects, as opposed to by default taking the opposite position from that of the government.