113th CONGRESS
1st Session
S. 1467
To establish the Office of the Special Advocate to provide advocacy in
cases before courts established by the Foreign Intelligence
Surveillance Act of 1978 and for other purposes.
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IN THE SENATE OF THE UNITED STATES
August 1, 2013
Mr. Blumenthal (for himself, Mrs. Murray, Mr. Wyden, Mr. Udall of
Colorado, Mr. Merkley, Mr. Udall of New Mexico, Mrs. Gillibrand, Mr.
Coons, Mr. Whitehouse, Mr. Tester, Mr. Franken, Ms. Baldwin, Mr.
Heinrich, Mr. Markey, Ms. Hirono, and Mr. Schatz) introduced the
following bill; which was read twice and referred to the Committee on
the Judiciary
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A BILL
To establish the Office of the Special Advocate to provide advocacy in
cases before courts established by the Foreign Intelligence
Surveillance Act of 1978 and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``FISA Court Reform Act of 2013''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Decision.--The term ``decision'' means a decision,
order, or opinion issued by the FISA Court or the FISA Court of
Review.
(2) FISA.--The term ``FISA'' means the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
(3) FISA court.--The term ``FISA Court'' means the court
established under section 103(a) of FISA (50 U.S.C. 1803(a)).
(4) FISA court of review.--The term ``FISA Court of
Review'' means the court of review established under section
103(b) of FISA (50 U.S.C. 1803(b)).
(5) Office.--The term ``Office'' mean the Office of the
Special Advocate established under section (3)(a).
(6) Significant construction or interpretation of law.--The
term ``significant construction or interpretation of law''
means a significant construction or interpretation of a
provision, as that term is construed under section 601(c) of
FISA (50 U.S.C. 1871(c)).
(7) Special advocate.--The term ``Special Advocate'' means
the Special Advocate appointed under section 3(b).
SEC. 3. OFFICE OF THE SPECIAL ADVOCATE.
(a) Establishment.--There is established in the executive branch as
an independent establishment, as defined in section 104 of title 5,
United States Code, an Office of the Special Advocate.
(b) Special Advocate.--
(1) In general.--The head of the Office is the Special
Advocate.
(2) Appointment and term.--
(A) Appointment.--The presiding judge of the FISA
Court of Review shall appoint the Special Advocate from
the list of candidates submitted under subparagraph
(B).
(B) List of candidates.--The Privacy and Civil
Liberties Oversight Board shall submit to the presiding
judge of the FISA Court of Review a list of not less
than 5 qualified candidates to serve as Special
Advocate.
(C) Security clearance.--An individual may be
appointed Special Advocate without regard to whether
the individual possesses a security clearance on the
date of the appointment.
(D) Term and dismissal.--A Special Advocate shall
be appointed for a term of 5 years and may be fired
only for good cause shown, including the demonstrated
inability to qualify for an adequate security
clearance.
(E) Reappointment.--There shall be no limit to the
number of consecutive terms served by a Special
Advocate. The reappointment of a Special Advocate shall
be made in the same manner as appointment of a Special
Advocate.
(F) Acting special advocate.--If the position of
Special Advocate is vacant, the presiding judge of the
FISA Court of Review may appoint an Acting Special
Advocate from among the qualified employees of the
Office. If there are no such qualified employees, the
presiding judge of the FISA Court of Review may appoint
an Acting Special Advocate from the most recent list of
candidates provided by the Privacy and Civil Liberties
Oversight Board pursuant to subparagraph (B). The
Acting Special Advocate shall have all of the powers of
a Special Advocate and shall serve until a Special
Advocate is appointed.
(3) Employees.--The Special Advocate is authorized, without
regard to the civil service laws and regulations, to appoint
and terminate employees of the Office.
(c) Security Clearances.--The appropriate departments, agencies,
and elements of the executive branch shall cooperate with the Office,
to the extent possible under existing procedures and requirements, to
expeditiously provide the Special Advocate and appropriate employees of
the Office with the security clearances necessary to carry out the
duties of the Special Advocate.
(d) Duties and Authorities of the Special Advocate.--
(1) In general.--The Special Advocate--
(A) shall review each application to the FISA Court
by the Attorney General;
(B) shall review each decision of the FISA Court or
the FISA Court of Review issued after the date of the
enactment of this Act and all documents and other
material relevant to such decision in a complete,
unredacted form;
(C) shall participate in a proceeding before the
FISA Court if appointed to participate by the FISA
Court under section 4(a);
(D) may request to participate in a proceeding
before the FISA Court;
(E) shall participate in such a proceeding if such
request is granted;
(F) may request reconsideration of a decision of
the FISA Court under section 4(b);
(G) may appeal or seek review of a decision of the
FISA Court or the FISA Court of Review under section 5;
and
(H) shall participate in such appeal or review.
(2) Advocacy.--The Special Advocate shall protect
individual rights by vigorously advocating before the FISA
Court or the FISA Court of Review, as appropriate, in support
of legal interpretations that minimize the scope of
surveillance and the extent of data collection and retention.
(3) Utilization of outside counsel.--The Special Advocate--
(A) may delegate to a competent outside counsel any
duty or responsibility of the Special Advocate with
respect to participation in a matter before the FISA
Court, the FISA Court of Review, or the Supreme Court
of the United States; and
(B) may not delegate to outside counsel any duty or
authority set out in subparagraph (A), (B), (D), (F),
or (G) of paragraph (1).
(4) Availability of documents and material.--The FISA Court
or the FISA Court of Review, as appropriate, shall order any
agency, department, or entity to make available to the Special
Advocate, or appropriate outside counsel if utilized by the
Special Advocate under paragraph (3), any documents or other
material necessary to carry out the duties described in
paragraph (1).
SEC. 4. ADVOCACY BEFORE THE FISA COURT.
(a) Appointment To Participate.--
(1) In general.--The FISA Court may appoint the Special
Advocate to participate in a FISA Court proceeding.
(2) Standing.--If the Special Advocate is appointed to
participate in a FISA Court proceeding pursuant to paragraph
(1), the Special Advocate shall have standing as a party before
the FISA Court in that proceeding.
(b) Reconsideration of a FISA Court Decision.--
(1) Authority to move for reconsideration.--The Special
Advocate may move the FISA Court to reconsider any decision of
the FISA Court made after the date of the enactment of this Act
by petitioning the FISA Court not later than 30 days after the
date on which all documents and materials relevant to the
decision are made available to the Special Advocate.
(2) Discretion of the fisa court.--The FISA Court shall
have discretion to grant or deny a motion for reconsideration
made pursuant to paragraph (1).
(c) Amicus Curiae Participation.--
(1) Motion by the special advocate.--The Special Advocate
may file a motion with the FISA Court to permit and facilitate
participation of amicus curiae, including participation in oral
argument if appropriate, in any proceeding. The FISA Court
shall have the discretion to grant or deny such a motion.
(2) Facilitation by the fisa court.--The FISA Court may,
sua sponte, permit and facilitate participation by amicus
curiae, including participation in oral argument if
appropriate, in proceedings before the FISA Court.
(3) Regulations.--Not later than 180 days after the date of
the enactment of this Act, the FISA Court shall promulgate
rules to provide the public with information sufficient to
allow interested parties to participate as amicus curiae.
SEC. 5. APPELLATE REVIEW.
(a) Appeal of FISA Court Decisions.--
(1) Authority to appeal.--The Special Advocate may appeal
any decision of the FISA Court issued after the date of the
enactment of this Act not later than 90 days after the date the
decision is issued, unless it would be apparent to all
reasonable jurists that such decision is dictated by statute or
by precedent handed down after such date of enactment.
(2) Standing as appellant.--If the Special Advocate appeals
a decision of the FISA Court pursuant to paragraph (1), the
Special Advocate shall have standing as a party before the FISA
Court of Review in such appeal.
(3) Mandatory review.--The FISA Court of Review shall
review any FISA Court decision appealed by the Special Advocate
and issue a decision in such appeal.
(4) Standard of review.--The standards for a mandatory
review of a FISA Court decision pursuant to paragraph (3) shall
be--
(A) de novo with respect to issues of law; and
(B) clearly erroneous with respect to determination
of facts.
(5) Amicus curiae participation.--
(A) In general.--The FISA Court of Review shall
accept amicus curiae briefs from interested parties in
all mandatory reviews pursuant to paragraph (3) and
shall provide for amicus participation in oral argument
if appropriate.
(B) Regulations.--Not later than 180 days after the
date of the enactment of this Act, the FISA Court of
Review shall promulgate rules to provide the public
with information sufficient to allow interested parties
to participate as amicus curiae.
(b) Review of FISA Court of Review Decisions.--
(1) Authority.--The Special Advocate may seek a writ of
certiorari from the Supreme Court of the United States for
review of any decision of the FISA Court of Review.
(2) Standing.--In any proceedings before the Supreme Court
of the United States relating to a petition of certiorari filed
under paragraph (1) and any proceedings in a matter for which
certiorari is granted, the Special Advocate shall have standing
as a party.
SEC. 6. DISCLOSURE.
(a) Requirement To Disclose.--The Attorney General shall publicly
disclose--
(1) all decisions issued by the FISA Court or the FISA
Court of Review after July 10, 2003, that include a significant
construction or interpretation of law;
(2) any decision of the FISA Court appealed by the Special
Advocate pursuant to this Act; and
(3) any FISA Court of Review decision that is issued after
an appeal by the Special Advocate.
(b) Disclosure Described.--For each disclosure required by
subsection (a) with respect to a decision, the Attorney General shall
make available to the public documents sufficient--
(1) to identify with particularity each legal question
addressed by the decision and how such question was resolved;
(2) to describe in general terms the context in which the
matter arises;
(3) to describe the construction or interpretation of any
statute, constitutional provision, or other legal authority
relied on by the decision; and
(4) to indicate whether the decision departed from any
prior decision of the FISA Court or FISA Court of Review.
(c) Documents Described.--The Attorney General shall satisfy the
disclosure requirements in subsection (b) by--
(1) releasing a FISA Court or FISA Court of Review decision
in its entirety or as redacted;
(2) releasing a summary of a FISA Court or FISA Court of
Review decision; or
(3) releasing an application made to the FISA Court, briefs
filed before the FISA Court or the FISA Court of Review, or
other materials, in full or as redacted.
(d) Extensive Disclosure.--The Attorney General shall release as
much information regarding the facts and analysis contained in a
decision described in subsection (a) or documents described in
subsection (c) as is consistent with legitimate national security
concerns.
(e) Timing of Disclosure.--
(1) Decisions issued prior to enactment.--A decision issued
prior to the date of the enactment of this Act that is required
to be disclosed under subsection (a)(1) shall be disclosed not
later than 180 days after the date of the enactment of this
Act.
(2) FISA court decisions.--The Attorney General shall
release FISA Court decisions appealed by the Special Advocate
not later than 30 days after the date the appeal is filed.
(3) FISA court of review decisions.--The Attorney General
shall release FISA Court of Review decisions appealed by the
Special Advocate not later than 90 days after the date the
appeal is filed.
(f) Petition by the Special Advocate.--
(1) Authority to petition.--The Special Advocate may
petition the FISA Court or FISA Court of Review to order--
(A) the public disclosure of a decision of such a
Court, and documents or other material relevant to such
a decision, previously designated as classified
information; or
(B) the release of an unclassified summary of such
decisions and documents.
(2) Contents of petition.--Each petition filed under
paragraph (1) shall contain a detailed declassification
proposal or a summary of the decision and documents that the
Special Advocate proposes to have released publicly.
(3) Role of the attorney general.--
(A) Copy of petition.--The Special Advocate shall
provide to the Attorney General a copy of each petition
filed under paragraph (1).
(B) Opposition.--The Attorney General may oppose a
petition filed under paragraph (1) by submitting any
objections in writing to the FISA Court or the FISA
Court of Review, as appropriate, not later than 90 days
after the date such petition was submitted.
(4) Public availability.--Not less than 91 days after
receiving a petition under paragraph (1), and taking into
account any objections from the Attorney General made under
paragraph (3)(B), the FISA Court or FISA Court of Review, as
appropriate, shall declassify and make readily available to the
public any decision, document, or other material requested in
such petition, if such decision, document, or other material
pertain to a decision that contains a significant construction
or interpretation of law, to the greatest extent possible,
consistent with legitimate national security considerations.
(5) Effective date.--The Special Advocate may not file a
petition under paragraph (1) until 181 days after the date of
the enactment of this Act, except with respect to a decision
appealed by the Special Advocate.
SEC. 7. ANNUAL REPORT TO CONGRESS.
(a) Requirement for Annual Report.--The Special Advocate shall
submit to Congress an annual report on the implementation of this Act.
(b) Contents.--Each annual report submitted under subsection (a)
shall--
(1) detail the activities of the Office;
(2) provide an assessment of the effectiveness of this Act;
and
(3) propose any new legislation to improve the functioning
of the Office or the operation of the FISA Court or the FISA
Court of Review.
SEC. 8. PRESERVATION OF RIGHTS.
Nothing in this Act shall be construed--
(1) to provide the Attorney General with authority to
prevent the FISA Court or FISA Court of Review from
declassifying decisions or releasing information pursuant to
this Act; and
(2) to eliminate the public's ability to secure information
under section 552 of title 5, United States Code (commonly
known as the ``Freedom of Information Act'') or any other
provision of law.
