[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3228 Introduced in House (IH)]

113th CONGRESS
  1st Session
                                H. R. 3228

   To 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.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            October 1, 2013

 Mr. 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 concerned

_______________________________________________________________________

                                 A BILL


 
   To 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.

    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 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)).

SEC. 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).

SEC. 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.

SEC. 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.

SEC. 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.

SEC. 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.

SEC. 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.

SEC. 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.
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