America’s super-secret court names five lawyers as public advocates

America’s most secretive court has now named its five amici curae—friends of the court—who will act as an outsider public advocate at the Foreign Intelligence Surveillance Court (FISC). The move was one of the provisions in the USA Freedom Act, which passed in June 2015 as a package of modest reforms to the national security system.

The five named attorneys are Jonathan G. Cedarbaum, John D. Cline, Laura Donohue, Amy Jeffress, and Marc Zwillinger. In September 2015, the FISC appointed Preston Burton as its first public advocate, but he will only serve in that role as a one-off for a particular case.

Top lawyers from the American Civil Liberties Union and the Electronic Frontier Foundation called these attorneys “impressive.”

FISA Court appoints amici. An impressive list. https://t.co/uSU4FrAAvn pic.twitter.com/xwtKNc9hDp

— Jameel Jaffer (@JameelJaffer) November 25, 2015

Agreed, very impressive! Although it would have been nice if the FISC had appointed a technical expert or two. https://t.co/zHKUE8ZGVs

— Nate Cardozo (@ncardozo) November 25, 2015

These lawyers will be tasked with presenting the "legal argument that advances the protection of individual privacy and civil liberties; information related to intelligence collection or communications technology; or legal arguments or information regarding any other area relevant to the issue presented to the court."

Previously, hearings before the FISC were ex parte, or one-sided, with the judge only hearing from government representatives. Prior to the Snowden leaks, all FISC opinions and its entire docket had been totally secret. In the court’s history, warrants (and related orders) are approved more than 99 percent of the time.

The new amici, who are all required to have security clearances, will not represent specific clients. They are simply meant to be an outside check on the government's position.

The quintet arrives

So, who are these people? All three men and two women, and with the exception of Cline, are based in Washington, DC.

Cedarbaum is veteran of the Department of Justice, having served most recently as the Acting Assistant Attorney General as part of the Office of Legal Counsel in the Obama Administration.

Cline, by contrast, is a criminal defense attorney. According to his own bio, he served as co-counsel in many high-profile government cases, including United States v. Oliver L. North, United States v. Wen Ho Lee, and United States v. I. Lewis "Scooter" Libby.

Meanwhile, Laura Donohue is the only sitting academic in the group—she’s currently a professor at Georgetown Law. She has written extensively on national security law, privacy, Executive Order 12333, and the Foreign Intelligence Surveillance Act.

Jeffress is currently a criminal defense lawyer, but she was previously a Justice Department Attaché to the US Embassy in London. There, Jeffress coordinated cooperation between American and British authorities. She is also a former prosecutor with the US Attorney’s Office for the District of Columbia.

Zwillinger is a longstanding privacy advocate. Way back in 2008, he represented Yahoo in its litigation fighting complying with directives under the Protect America Act, the precursor to the FISA Amendments Act. In that case, according to his bio, Zwillinger became the first private lawyer ever to appear before the FISC. More recently, he continues to represent Apple in a federal drug case in New York as the company attempts to resist government pressure to extract data from a seized iPhone.