FISA court 'works well as it is': Opposing view

• These federal judges with life tenure are fully independent of the executive branch.
• No FISA order is issued unless the court determines it falls within the scope of what the statute reasonably permits.
• The judges are assisted by permanent legal advisers who have a healthy skepticism for executive branch lawyers%27 assertions.

Changing the court process to approve Foreign Intelligence Surveillance Act (FISA) orders into an adversary proceeding may sound reasonable, but the system works well as it is and the proposed change wouldn't make it better.

It's important to remember that FISA judges are regular federal judges with life tenure, fully independent of the executive branch. They flyspeck the applications, independently analyze the issues and make sure the requirements of the FISA statute are satisfied — not unlike what federal judges do every day in reviewing applications for criminal wiretap warrants, where there is no adversary process.

The FISA judges serve the rule of law and the public interest, not the bidding of the government, and they never "rewrite" the law. No FISA order is issued unless the court determines it falls within the scope of what the statute reasonably permits.

The judges are assisted by permanent legal advisers who are familiar with FISA precedents and have a healthy skepticism for executive branch lawyers' assertions. If an application raises novel questions or would go beyond prior orders, the judges ask their legal advisers to take a harder look. Anyone familiar with the process knows that a specially appointed advocate is unlikely to be any more effective at finding flaws in the government's arguments.

Because reviewing FISA applications requires access to the most sensitive national security information, an appointed advocate would have to be a trusted officer of the executive branch or the court with security clearances.

If part of the executive branch, the advocate would answer to the president. If employed by the court, he or she would be, in effect, just another legal adviser to the judges. Either way, the special advocate could never be a true independent adversary representing the interests of those under surveillance.

If there's a desire for opposing briefs from third parties on important issues, the law already allows them, when consistent with national security. The statute permits companies receiving FISA orders to challenge their scope and legality.

And on issues such as the telephone metadata order, where approval of an order may involve important questions of law and the order's existence is known, outside advocacy groups could ask to submit briefs opposing renewal of the order.

That's a good balance.

Steven G. Bradbury headed the Justice Department's Office of Legal Counsel during the George W. Bush administration.