113 HR 3228 IH: FISA Court Reform Act of 2013 U.S. House of Representatives 2013-10-01 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

I113th CONGRESS1st SessionH. R. 3228IN THE HOUSE OF REPRESENTATIVESOctober 1, 2013Mr. Van Hollen (for himself and Mr. Jordan) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Select Committee on Intelligence (Permanent Select), for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concernedA BILLTo establish the Office of the Constitutional Advocate to provide advocacy in cases before courts established by the Foreign Intelligence Surveillance Act of 1978, and for other purposes.

1.

Short title

This Act may be cited as the FISA Court Reform Act of 2013.

2.

Definitions

In this title:(1)

Constitutional Advocate

The term Constitutional Advocate means the Constitutional Advocate appointed under section 3(b).(2)

Decision

The term decision means a decision, order, or opinion issued by the FISA Court or the FISA Court of Review.(3)

FISA

The term FISA means the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).(4)

FISA Court

The term FISA Court means the court established under section 103(a) of FISA (50 U.S.C. 1803(a)).(5)

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)).(6)

Office

The term Office means the Office of the Constitutional Advocate established under section 3(a).(7)

Petition review pool

The term petition review pool means the petition review pool established by section 103(e) of FISA (50 U.S.C. 1803(e)) or any member of that pool.(8)

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)).

3.

Office of the Constitutional Advocate

(a)

Establishment

There is established within the judicial branch of the United States an Office of the Constitutional Advocate.(b)

Constitutional Advocate

(1)

In general

The head of the Office is the Constitutional Advocate.(2)

Appointment and term

(A)

Appointment

The Chief Justice of the United States shall appoint the Constitutional Advocate from the list of candidates submitted under subparagraph (B).(B)

Candidates

(i)

List of candidates

The Privacy and Civil Liberties Oversight Board shall submit to the Chief Justice a list of not less than 5 qualified candidates to serve as a Constitutional Advocate.(ii)

Selection of candidates

In preparing a list described in clause (i), the Privacy and Civil Liberties Oversight Board shall select candidates the Board believes will be zealous and effective advocates in defense of civil liberties and consider each potential candidate's—(I)litigation and other professional experience;(II)experience with the areas of law the Constitutional Advocate is likely to encounter in the course of the Advocate's duties; and(III)demonstrated commitment to civil liberties.(C)

Security Clearance

An individual may be appointed Constitutional Advocate without regard to whether the individual possesses a security clearance on the date of the appointment.(D)

Term and dismissal

A Constitutional Advocate shall be appointed for a term of 3 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 Constitutional Advocate. The reappointment of a Constitutional Advocate shall be made in the same manner as appointment of a Constitutional Advocate.(F)

Acting Constitutional Advocate

If the position of Constitutional Advocate is vacant, the Chief Justice may appoint an Acting Constitutional Advocate from among the qualified employees of the Office. If there are no such qualified employees, the Chief Justice may appoint an Acting Constitutional Advocate from the most recent list of candidates provided by the Privacy and Civil Liberties Oversight Board pursuant to subparagraph (B). The Acting Constitutional Advocate shall have all of the powers of a Constitutional Advocate and shall serve until a Constitutional Advocate is appointed.(3)

Employees

The Constitutional 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 Constitutional Advocate and appropriate employees of the Office with the security clearances necessary to carry out the duties of the Constitutional Advocate.(d)

Duties and authorities of the Constitutional Advocate

(1)

In general

The Constitutional Advocate—(A)shall review each application to the FISA Court by the Attorney General;(B)shall review each decision of the FISA Court, the petition review pool, 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)may participate in a proceeding before the petition review pool if such participation is requested by a party in such a proceeding or by the petition review pool;(D)shall consider any request from a provider who has been served with an order, certification, or directive compelling the provider to provide assistance to the Government or to release customer information to assist that provider in a proceeding before the FISA Court or the petition review pool, including a request—(i)to oppose the Government on behalf of the private party in such a proceeding; or(ii)to provide guidance to the private party if the private party is considering compliance with an order of the FISA Court;(E)shall participate in a proceeding before the FISA Court if appointed to participate by the FISA Court under section 4(a) and may participate in a proceeding before the petition review pool if authorized under section 5(a);(F)may request to participate in a proceeding before the FISA Court or the petition review pool;(G)shall participate in such a proceeding if such request is granted;(H)may request reconsideration of a decision of the FISA Court under section 4(b);(I)may appeal or seek review of a decision of the FISA Court, the petition review pool, or the FISA Court of Review, as permitted by this title; and(J)shall participate in such appeal or review.(2)

Advocacy

The Constitutional Advocate shall protect individual rights by vigorously advocating before the FISA Court, the petition review pool, 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 Constitutional Advocate—(A)may delegate to a competent outside counsel any duty or responsibility of the Constitutional 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), (H), or (I) of paragraph (1).(4)

Availability of documents and material

The FISA Court, the petition review pool, or the FISA Court of Review, as appropriate, shall order any agency, department, or entity to make available to the Constitutional Advocate, or appropriate outside counsel if utilized by the Constitutional Advocate under paragraph (3), any documents or other material necessary to carry out the duties described in paragraph (1).

4.

Advocacy before the FISA Court

(a)

Appointment To participate

(1)

In general

The FISA Court may appoint the Constitutional Advocate to participate in a FISA Court proceeding.(2)

Standing

If the Constitutional Advocate is appointed to participate in a FISA Court proceeding pursuant to paragraph (1), the Constitutional 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 Constitutional 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 Constitutional 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 Constitutional Advocate

The Constitutional 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.

5.

Advocacy before the petition review pool

(a)

Authority To participate

The petition review pool or any party to a proceeding before the petition review pool may authorize the Constitutional Advocate to participate in a petition review pool proceeding.(b)

Reconsideration of a petition review pool decision

(1)

Authority to move for reconsideration

The Constitutional Advocate may move the petition review pool to reconsider any decision of the petition review pool made after the date of the enactment of this Act by petitioning the petition review pool not later than 30 days after the date on which all documents and materials relevant to the decision are made available to the Constitutional Advocate.(2)

Discretion of the petition review pool

The petition review pool shall have discretion to grant or deny a motion for reconsideration made pursuant to paragraph (1).(c)

Amicus curiae participation

(1)

Motion by the Constitutional Advocate

The Constitutional Advocate may file a motion with the petition review pool to permit and facilitate participation of amicus curiae, including participation in oral argument if appropriate, in any proceeding. The petition review pool shall have the discretion to grant or deny such a motion.(2)

Facilitation by the FISA Court

The petition review pool may, sua sponte, permit and facilitate participation by amicus curiae, including participation in oral argument if appropriate, in proceedings before the petition review pool.(3)

Regulations

Not later than 180 days after the date of the enactment of this Act, the petition review pool shall promulgate rules to provide the public with information sufficient to allow interested parties to participate as amicus curiae.

6.

Appellate review

(a)

Appeal of FISA Court decisions

(1)

Authority to appeal

The Constitutional Advocate may appeal any decision of the FISA Court or the petition review pool 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 Constitutional Advocate appeals a decision of the FISA Court or the petition review pool pursuant to paragraph (1), the Constitutional 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 or petition review pool decision appealed by the Constitutional Advocate and issue a decision in such appeal.(4)

Standard of review

The standards for a mandatory review of a FISA Court or petition review pool 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 curiae 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 Constitutional 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 Constitutional Advocate shall have standing as a party.

7.

Disclosure

(a)

Requirement To disclose

The Attorney General shall publicly disclose—(1)all decisions issued by the FISA Court, the petition review pool, 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 or the petition review pool appealed by the Constitutional Advocate pursuant to this title; and(3)any FISA Court of Review decision that is issued after an appeal by the Constitutional 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, the petition review pool, or the FISA Court of Review.(c)

Documents described

The Attorney General shall satisfy the disclosure requirements in subsection (b) by—(1)releasing a FISA Court, petition review pool, or FISA Court of Review decision in its entirety or as redacted;(2)releasing a summary of a FISA Court, petition review pool, or FISA Court of Review decision; or(3)releasing an application made to the FISA Court, a petition made to the petition review pool, briefs filed before the FISA Court, the petition review pool, 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 and petition review pool decisions

The Attorney General shall release FISA Court or petition review pool decisions appealed by the Constitutional 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 Constitutional Advocate not later than 90 days after the date the appeal is filed.(f)

Petition by the Constitutional Advocate

(1)

Authority to petition

The Constitutional Advocate may petition the FISA Court, the petition review pool, or the FISA Court of Review to order—(A)the public disclosure of a decision of such a Court or review pool, 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 Constitutional Advocate proposes to have released publicly.(3)

Role of the Attorney General

(A)

Copy of petition

The Constitutional 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, the petition review pool, 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, the petition review pool, or the 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, to the greatest extent possible, consistent with legitimate national security considerations.(5)

Effective date

The Constitutional 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 Constitutional Advocate.

8.

Annual report to Congress

(a)

Requirement for annual report

The Constitutional Advocate shall submit to Congress an annual report on the implementation of this title.(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 title; and(3)propose any new legislation to improve the functioning of the Office or the operation of the FISA Court, the petition review pool, or the FISA Court of Review.

9.

Preservation of rights

Nothing in this title shall be construed—(1)to provide the Attorney General with authority to prevent the FISA Court, the petition review pool, or the FISA Court of Review from declassifying decisions or releasing information pursuant to this title; 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.