[Congressional Record Volume 164, Number 9 (Tuesday, January 16, 2018)]
[Senate]
[Pages S205-S206]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 1895. Mr. WYDEN (for himself and Mr. Paul) submitted an amendment
intended to be proposed by him to the bill S. 139, to implement the use
of Rapid DNA instruments to inform decisions about pretrial release or
detention and their conditions, to solve and prevent violent crimes and
other crimes, to exonerate the innocent, to prevent DNA analysis
backlogs, and for other purposes; which was ordered to lie on the
table; as follows:
On page 29, strike lines 14 through 24 and insert the
following:
SEC. 106. IMPROVED ROLE IN OVERSIGHT OF ELECTRONIC
SURVEILLANCE BY AMICI CURIAE APPOINTED BY
COURTS UNDER FOREIGN INTELLIGENCE SURVEILLANCE
ACT OF 1978.
(a) Role of Amici Curiae Generally.--
(1) In general.--Section 103(i)(1) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(i)(1))
is amended by adding at the end the following: ``Any amicus
curiae designated pursuant to this paragraph may raise any
issue with the Court at any time.''.
(2) Referral of cases for review.--Section 103(i) of such
Act is amended--
(A) by redesignating paragraphs (5) through (10) as
paragraphs (6) through (11), respectively; and
(B) by inserting after paragraph (4) the following:
``(5) Referral for review.--
``(A) Referral to foreign intelligence surveillance court
en banc.--If the court established under subsection (a)
appoints an amicus curiae under paragraph (2)(A) to assist
the Court in the consideration of any matter presented to the
Court under this Act and the Court makes a decision with
respect to such matter, the Court, in response to an
application by the amicus curiae or any other individual
designated under paragraph (1), may refer the decision to the
Court en banc for review as the Court considers appropriate.
``(B) Referral to foreign intelligence surveillance court
of review.--If the court established under subsection (a)
appoints an amicus curiae under paragraph (2)(A) to assist
the Court in the consideration of any matter presented to the
Court under this Act and the Court makes a decision with
respect to such matter, the Court, in response to an
application by the amicus curiae or any other individual
designated under paragraph (1) may refer the decision to the
court established under subsection (b) for review as the
Court considers appropriate.
``(C) Referral to supreme court.--If the Court of Review
appoints an amicus curiae under paragraph (2) to assist the
Court of Review in the review of any matter presented to the
Court of Review under this Act or a question of law that may
affect resolution of a matter in controversy and the Court of
Review makes a decision with respect to such matter or
question of law, the Court of Review, in response to an
application by the amicus curiae or any other individual
designated under paragraph (1) may refer the decision to the
Supreme Court for review as the Court of Review considers
appropriate.
``(D) Annual report.--Not later than 60 days after the end
of each calendar year, the Court and the Court of Review
shall each publish, on their respective Internet websites, a
report listing--
``(i) the number of applications for referral received by
the Court or the Court of Review, as applicable, during the
most recently concluded calendar year; and
``(ii) the number of such applications for referral that
were granted by the Court or the Court of Review, as
applicable, during such calendar year.''.
(3) Assistance.--Section 103(i)(6) of such Act, as
redesignated, is further amended to read as follows:
``(6) Assistance.--Any individual designated pursuant to
paragraph (1) may raise a legal or technical issue or any
other issue with the Court or the Court of Review at any
time. If an amicus curiae is appointed under paragraph
(2)(A)--
``(A) the court shall notify all other amicus curiae
designated under paragraph (1) of such appointment;
``(B) the appointed amicus curiae may request, either
directly or through the court, the assistance of the other
amici curiae designated under paragraph (1); and
``(C) all amici curiae designated under paragraph (1) may
provide input to the court whether or not such input was
formally requested by the court or the appointed amicus
curiae.''.
(4) Access to information.--Section 103(i)(7) of such Act,
as redesignated, is further amended--
(A) in subparagraph (A)--
[[Page S206]]
(i) in clause (i)--
(I) by striking ``that the court'' and inserting the
following: ``that--
``(I) the court''; and
(II) by striking ``and'' at the end and inserting the
following: ``or
``(II) are cited by the Government in an application or
case with respect to which an amicus curiae is assisting a
court under this subsection;'';
(ii) by redesignating clause (ii) as clause (iii); and
(iii) by inserting after clause (i) the following:
``(ii) shall have access to an unredacted copy of each
decision made by a court established under subsection (a) or
(b) in which the court decides a question of law,
notwithstanding whether the decision is classified; and'';
(B) in subparagraph (B), by striking ``may'' and inserting
``shall''; and
(C) in subparagraph (C)--
(i) in the subparagraph heading, by striking ``Classified
information'' and inserting ``Access to information''; and
(ii) by striking ``court may have access'' and inserting
the following: ``court--
``(i) shall have access to unredacted copies of each
opinion, order, transcript, pleading, or other document of
the Court and the Court of Review; and
``(ii) may have access''.
(5) Public notice and receipt of briefs from third
parties.--Section 103(i) of such Act, as amended by this
subsection, is further amended by adding at the end the
following:
``(12) Public notice and receipt of briefs from third
parties.--Whenever a court established under subsection (a)
or (b) considers a novel a question of law that can be
considered without disclosing classified information,
sources, or methods, the court shall, to the greatest extent
practicable, consider such question in an open manner--
``(A) by publishing on its Internet website each question
of law that the court is considering; and
``(B) by accepting briefs from third parties relating to
the question under consideration by the court.''.
(6) Compensation of amici curiae and technical experts.--
Such section, as so amended, is further amended by adding at
the end the following:
``(13) Compensation.--Notwithstanding any other provision
of law, a court established under subsection (a) or (b) may
compensate an amicus curiae appointed under paragraph (2) for
assistance provided under such paragraph as the court
considers appropriate and at such rate as the court considers
appropriate.''.
(b) Participation of Amici Curiae in Oversight of
Authorizations for Targeting of Certain Persons Outside the
United States Other Than United States Persons.--
(1) In general.--Section 702(i)(2) of such Act (50 U.S.C.
1881a(i)(2)) is amended--
(A) in subparagraph (B), by redesignating clauses (i) and
(ii) as subclauses (I) and (II), respectively, and adjusting
the indentation of the margin of such subclauses, as so
redesignated, two ems to the right;
(B) by redesignating subparagraphs (A) through (C) as
clauses (i) through (iii), respectively, and adjusting the
indentation of the margin of such clauses, as so
redesignated, two ems to the right;
(C) by inserting before clause (i), as redesignated by
subparagraph (B), the following:
``(A) In general.--''; and
(D) by adding at the end the following:
``(B) Participation by amici curiae.--In reviewing a
certification under subparagraph (A)(i), the Court shall
randomly select an amicus curiae designated under section
103(i) to assist with such review.''.
(2) Schedule.--Section 702(i)(5)(A) of such Act is amended
by striking ``at least 30 days prior to the expiration of
such authorization'' and inserting ``such number of days
before the expiration of such authorization as the Court
considers necessary to comply with the requirements of
paragraph (2)(B) or 30 days, whichever is greater''.
(c) Public Notice of Questions of Law Certified for
Review.--Section 103(j) of such Act (50 U.S.C. 1803(j)) is
amended--
(1) by striking ``Following'' and inserting the following:
``(1) In general.--Following''; and
(2) by adding at the end the following:
``(2) Public notice.--
``(A) In general.--Except as provided in subparagraph (B),
whenever a court established under subsection (a) certifies a
question of law for review under paragraph (1) of this
subsection, the court shall publish on its Internet website--
``(i) a notice of the question of law to be reviewed; and
``(ii) briefs submitted by the parties, which may be
redacted at the discretion of the court to protect sources,
methods, and other classified information.
``(B) Protection of classified information, sources, and
methods.--Subparagraph (A) shall apply to the greatest extent
practicable, consistent with otherwise applicable law on the
protection of classified information, sources, and
methods.''.
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