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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.

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

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.