One of the ripples from Edward Snowden’s revelations of the orders issued by the FISA court has been shock and surprise (from those who have not been paying much attention) at the workings of the FISA court. They have been roundly attacked for operating behind closed doors, hearing only one side of things, and issuing judgments only in secret. Thus, when Snowden made public one of their rulings — the order to Verizon to turn over metadata — it not only brought that specific surveillance tactic into the open, but demonstrated more broadly how the secret rulings of this confidential court reach into everyday life of ordinary people.
The reaction of the government has been two-fold: (a) demonize Snowden, and (b) distract from FISA. They would much rather talk about the evils of a spy/leaker (note from the government: do NOT call him a whistleblower) than discuss the secretive nature of the FISA court. Pay no attention to the robed figure behind the curtain.
Maybe a word from Pope Sixtus V would help. No, make that two words: advocatus diaboli.
Back in the day, when the papacy was going after my Lutheran ancestors with a vengeance, Pope Sixtus V had a very very good idea. As he considered who was worthy of being declared a saint, the system at that time was much like the FISA court. “Based on all this evidence,” says the advocate for the person under consideration, “you ought to declare this person a saint.” The problem was that those presenting this evidence might have . . . how to put this kindly? . . . other agendas. Perhaps they were related to the person being considered, or had powerful patrons who had promised substantial gifts once a favored person was canonized. Perhaps they were trying to make friends in the papal court, or trying to please secular powers. Perhaps they were hoodwinked by others, promoting their own agendas. Perhaps . . . perhaps . . . perhaps . . .
Kind of like the FISA court.
Sure, the advocates say that this is everything they’ve found, and they say that this is the only reasonable explanation, and they say that the court has no real choice but to accept their conclusions, but . . .
But Sixtus had a solution.
Sixtus’ solution was to set up a formal office that several of his predecessors had used informally: the advocatus diaboli, or “devil’s advocate.” The whole purpose of the Devil’s Advocate was to assume that the person under consideration was not worthy of sainthood. Maybe the presenters were ignoring other evidence that didn’t support their case. Maybe the presenters had misrepresented the evidence. Maybe the presenters had been unduly influenced by people with a vested interest in a particular outcome. Maybe there were other explanations for the miracles the presenters were claiming. Maybe . . . maybe . . . maybe there was reasonable doubt, the presenters were wrong, and this person ought not be canonized.
Imagine how differently the FISA Court might operate if there were a secular version of the advocatus diaboli, arguing against the presentations of the government. Someone who speaks up for the first amendment, and the fourth, and the fifth, and the sixth, as well as the First and Third Articles of the Constitution itself. Someone who speaks up for the person under suspicion by the executive branch. Someone who might argue that the executive branch was ignoring other evidence that didn’t support their case, or that the executive branch had misrepresented the evidence, or that there were other explanations for what they alleged, or . . .
Face it: if you are going to have a court like the FISA court, you need a Devil’s Advocate to be a part of it.
Just as Chief Justice Roberts chooses the FISA judges, perhaps the Speaker of the House, the President Pro-tem of the Senate, and the junior-most member of the Supreme Court should appoint a panel of lawyers to serve as advocatii diaboli, to see that the deliberations of the FISA court are in the grand tradition of adversarial argumentation in the courtroom.
The days of one-sided legal argumentation must come to an end. And if a good Lutheran like me can say that it was good enough for for a good Roman Catholic like Pope Sixtus V, maybe it’s good enough for John Roberts and the FISA court. Would it solve all the problems with FISA? No. But it would be a nice start.
And a hell of a lot better (so to speak) than what we’ve got right now.
For the record, John Paul II revised the process of canonization to eliminate the office of advocatus diaboli. I’ll leave the discussion of his reasons for a separate venue . . . but suffice it to say that I think the wisdom of his decision was lacking. Just as the logic behind the current one-sided argumentation before the FISA court is lacking.
h/t for the woodcut of Sixtus V to the Diocesan and Regional Library of Skara, Sweden and used under Creative Commons Attribution 2.0 Generic license.