The Limits of the Freedom Act's Amicus Curiae

The federal government’s power to engage in surveillance for national security purposes is extensive. In an effort to reform the current national surveillance regime, scholars have called for, among other things, the creation of a “special advocate” to counter the government’s arguments before the Foreign Intelligence Surveillance Court. Feeling political pressure to improve an ever-unpopular national surveillance regime, lawmakers passed the USA FREEDOM Act (“Freedom Act”). Section 401 of the Freedom Act provides for the creation of an “amicus curiae,” a position that differs from earlier conceptions of a “special advocate” in important respects.

This Essay examines those differences, and counsels against conflating the Freedom Act’s amicus curiae with a true special advocate. By doing so, this Essay highlights the need for continued calls for a special advocate.