[Congressional Record Volume 168, Number 158 (Thursday, September 29, 2022)]
[Senate]
[Pages S5735-S5737]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 6214. Mr. LEAHY (for himself, Mr. Lee, Ms. Baldwin, Mr.
Blumenthal, Mr. Cramer, Ms. Hirono, Mr. Markey, and Mr. Wyden)
submitted an amendment intended to be proposed to amendment SA 5499
submitted by Mr. Reed (for himself and Mr. Inhofe) and intended to be
proposed to the bill H.R. 7900, to authorize appropriations for fiscal
year 2023 for military activities of the Department of Defense, for
military construction, and for defense activities of the Department of
Energy, to prescribe military personnel strengths for such fiscal year,
and for other purposes; which was ordered to lie on the table; as
follows:
Subtitle H--FISA Amici Curiae Reform Act of 2022
SEC. 1081. SHORT TITLE.
This subtitle may be cited as the ``FISA Amici Curiae
Reform Act of 2022''.
SEC. 1082. AMENDMENTS TO THE FOREIGN INTELLIGENCE
SURVEILLANCE ACT OF 1978.
Except as otherwise expressly provided, whenever in this
subtitle an amendment or repeal is expressed in terms of an
amendment to, or a repeal of, a section or other provision,
the reference shall be considered to be made to a section or
other provision of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.).
SEC. 1083. APPOINTMENT OF AMICI CURIAE AND ACCESS TO
INFORMATION.
(a) Expansion of Appointment Authority.--
(1) In general.--Section 103(i)(2) (50 U.S.C. 1803(i)(2))
is amended--
(A) by striking subparagraph (A) and inserting the
following:
``(A) shall appoint 1 or more individuals who have been
designated under paragraph (1), not fewer than 1 of whom
possesses privacy and civil liberties expertise, unless the
court finds that such a qualification is inappropriate, to
serve as amicus curiae to assist the court in the
consideration of any application or motion for an order or
review that, in the opinion of the court--
``(i) presents a novel or significant interpretation of the
law, unless the court issues a finding that such appointment
is not appropriate;
``(ii) presents significant concerns with respect to the
activities of a United States person that are protected by
the first amendment to the Constitution of the United States,
unless the court issues a finding that such appointment is
not appropriate;
``(iii) presents or involves a sensitive investigative
matter, unless the court issues a finding that such
appointment is not appropriate;
``(iv) presents a request for approval of a new program, a
new technology, or a new use of existing technology, unless
the court issues a finding that such appointment is not
appropriate;
``(v) presents a request for reauthorization of
programmatic surveillance, unless the court issues a finding
that such appointment is not appropriate; or
``(vi) otherwise presents novel or significant civil
liberties issues, unless the court issues a finding that such
appointment is not appropriate; and''; and
(B) in subparagraph (B), by striking ``an individual or
organization'' each place the term appears and inserting ``1
or more individuals or organizations''.
(2) Definition of sensitive investigative matter.--Section
103(i) (50 U.S.C. 1803(i)) is amended by adding at the end
the following:
``(12) Definition.--In this subsection, the term `sensitive
investigative matter' means--
``(A) an investigative matter involving the activities of--
``(i) a domestic public official or political candidate, or
an individual serving on the staff of such an official or
candidate;
``(ii) a domestic religious or political organization, or a
known or suspected United States person prominent in such an
organization; or
``(iii) the domestic news media; or
``(B) any other investigative matter involving a domestic
entity or a known or suspected United States person that, in
the judgment of the applicable court established under
subsection (a) or (b), is as sensitive as an investigative
matter described in subparagraph (A).''.
(b) Authority To Seek Review.--Section 103(i) (50 U.S.C.
1803(i)), as amended by subsection (a) of this section, is
amended--
(1) in paragraph (4)--
(A) in the paragraph heading, by inserting ``; authority''
after ``Duties'';
(B) by redesignating subparagraphs (A), (B), and (C) as
clauses (i), (ii), and (iii), respectively, and adjusting the
margins accordingly;
(C) in the matter preceding clause (i), as so designated,
by striking ``the amicus curiae shall'' and inserting the
following: ``the amicus curiae--
``(A) shall'';
(D) in subparagraph (A)(i), as so designated, by inserting
before the semicolon at the end the following: ``, including
legal arguments regarding any privacy or civil liberties
interest of any United States person that would be
significantly impacted by the application or motion''; and
(E) by striking the period at the end and inserting the
following: ``; and
``(B) may seek leave to raise any novel or significant
privacy or civil liberties issue relevant to the application
or motion or other issue directly impacting the legality of
the proposed electronic surveillance with the court,
regardless of whether the court has requested assistance on
that issue.'';
(2) by redesignating paragraphs (7) through (12) as
paragraphs (8) through (13), respectively; and
(3) by inserting after paragraph (6) the following:
``(7) Authority to seek review of decisions.--
``(A) FISA court decisions.--
``(i) Petition.--Following issuance of an order under this
Act by the Foreign Intelligence Surveillance Court, an amicus
curiae appointed under paragraph (2) may petition the Foreign
Intelligence Surveillance Court to certify for review to the
Foreign Intelligence Surveillance Court of Review a question
of law pursuant to subsection (j).
``(ii) Written statement of reasons.--If the Foreign
Intelligence Surveillance Court denies a petition under this
subparagraph, the Foreign Intelligence Surveillance Court
shall provide for the record a written statement of the
reasons for the denial.
``(iii) Appointment.--Upon certification of any question of
law pursuant to this subparagraph, the Court of Review shall
appoint the amicus curiae to assist the Court of Review in
its consideration of the certified question, unless the Court
of Review issues a finding that such appointment is not
appropriate.
``(B) FISA court of review decisions.--An amicus curiae
appointed under paragraph (2) may petition the Foreign
Intelligence Surveillance Court of Review to certify for
review to the Supreme Court of the United States any question
of law pursuant to section 1254(2) of title 28, United States
Code.
``(C) Declassification of referrals.--For purposes of
section 602, a petition filed under subparagraph (A) or (B)
of this paragraph and all of its content shall be considered
a decision, order, or opinion issued by the Foreign
Intelligence Surveillance Court or the Foreign Intelligence
Surveillance Court of Review described in paragraph (2) of
section 602(a).''.
(c) Access to Information.--
(1) Application and materials.--Section 103(i)(6) (50
U.S.C. 1803(i)(6)) is amended by striking subparagraph (A)
and inserting the following:
``(A) In general.--
``(i) Right of amicus.--If a court established under
subsection (a) or (b) appoints an amicus curiae under
paragraph (2), the amicus curiae--
``(I) shall have access, to the extent such information is
available to the Government, to--
``(aa) the application, certification, petition, motion,
and other information and supporting materials, including any
information described in section 901, submitted to the
[[Page S5736]]
Foreign Intelligence Surveillance Court in connection with
the matter in which the amicus curiae has been appointed,
including access to any relevant legal precedent (including
any such precedent that is cited by the Government, including
in such an application);
``(bb) an unredacted copy of each relevant decision made by
the Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review in which the court
decides a question of law, without regard to whether the
decision is classified; and
``(cc) any other information or materials that the court
determines are relevant to the duties of the amicus curiae;
and
``(II) may make a submission to the court requesting access
to any other particular materials or information (or category
of materials or information) that the amicus curiae believes
to be relevant to the duties of the amicus curiae.
``(ii) Supporting documentation regarding accuracy.--The
Foreign Intelligence Surveillance Court, upon the motion of
an amicus curiae appointed under paragraph (2) or upon its
own motion, may require the Government to make available the
supporting documentation described in section 902.''.
(2) Clarification of access to certain information.--
Section 103(i)(6) (50 U.S.C. 1803(i)(6)) is amended--
(A) in subparagraph (B), by striking ``may'' and inserting
``shall''; and
(B) by striking subparagraph (C) and inserting the
following:
``(C) Classified information.--An amicus curiae designated
or appointed by the court shall have access, to the extent
such information is available to the Government, to
unredacted copies of each opinion, order, transcript,
pleading, or other document of the Foreign Intelligence
Surveillance Court and the Foreign Intelligence Surveillance
Court of Review, including, if the individual is eligible for
access to classified information, any classified documents,
information, and other materials or proceedings.''.
(d) Effective Date.--The amendments made by this section
shall take effect on the date of enactment of this Act and
shall apply with respect to proceedings under the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) that take place on or after, or are pending on, that
date.
SEC. 1084. DECLASSIFICATION OF SIGNIFICANT DECISIONS, ORDERS,
AND OPINIONS.
(a) Matters Covered.--Section 602 (50 U.S.C. 1872) is
amended--
(1) by striking ``Subject to subsection (b)'' and inserting
``(1) Subject to subsection (b)'';
(2) by striking ``includes a significant'' and all that
follows through ``, and,'' and inserting ``is described in
paragraph (2) and,''; and
(3) by adding at the end the following:
``(2) The decisions, orders, or opinions issued by the
Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review described in this
paragraph are such decisions, orders, or opinions that--
``(A) include a significant construction or interpretation
of any provision of law, including any novel or significant
construction or interpretation of the term `specific
selection term'; or
``(B) result from--
``(i) a proceeding in which an amicus curiae has been
appointed pursuant to section 103(i);
``(ii) a proceeding in the Foreign Intelligence Court of
Review resulting from the petition of an amicus curiae under
section 103(i)(7); or
``(iii) a proceeding in which an amicus curiae could have
been appointed pursuant to section 103(i)(2)(A).''.
(b) Application of Requirement.--
(1) In general.--Section 602 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1872), as amended by this
section, shall apply with respect to each decision, order, or
opinion issued by the Foreign Intelligence Surveillance Court
or the Foreign Intelligence Surveillance Court of Review
before, on, or after the date of enactment of that section.
(2) Past decisions, orders, and opinions.--With respect to
each decision, order, or opinion described in paragraph (1)
that was issued before or on the date of enactment referred
to in that paragraph, the Director of National Intelligence
shall complete the declassification review and public release
of the decision, order, or opinion pursuant to section 602 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1872) by not later than 1 year after the date of enactment of
this Act.
SEC. 1085. DISCLOSURE OF RELEVANT INFORMATION; CERTIFICATION
REGARDING ACCURACY PROCEDURES.
(a) Disclosure of Relevant Information.--
(1) In general.--The Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended by adding at the
end the following:
``TITLE IX--DISCLOSURE OF RELEVANT INFORMATION
``SEC. 901. DISCLOSURE OF RELEVANT INFORMATION.
``The Attorney General or any other Federal officer making
an application for a court order under this Act shall provide
the court with--
``(1) all information in the possession of the Government
that is material to determining whether the application
satisfies the applicable requirements under this Act,
including any exculpatory information; and
``(2) all information in the possession of the Government
that might reasonably--
``(A) call into question the accuracy of the application or
the reasonableness of any assessment in the application
conducted by the department or agency on whose behalf the
application is made; or
``(B) otherwise raise doubts with respect to the findings
that are required to be made under the applicable provision
of this Act in order for the court order to be issued.''.
(2) Technical amendment.--The table of contents of the
Foreign Intelligence Surveillance Act of 1978 is amended by
adding at the end the following:
``TITLE IX--DISCLOSURE OF RELEVANT INFORMATION
``Sec. 901. Disclosure of relevant information.''.
(b) Certification Regarding Accuracy Procedures.--
(1) In general.--Title IX of the Foreign Intelligence
Surveillance Act of 1978, as added by subsection (a), is
amended by adding at the end the following:
``SEC. 902. CERTIFICATION REGARDING ACCURACY PROCEDURES.
``(a) Definition.--In this section, the term `accuracy
procedures' means specific procedures, adopted by the
Attorney General, to ensure that an application for a court
order under this Act, including any application for renewal
of an existing order, is accurate and complete, including
procedures that ensure, at a minimum, that--
``(1) the application reflects all information that might
reasonably call into question the accuracy of the information
or the reasonableness of any assessment in the application,
or otherwise raises doubts about the requested findings;
``(2) the application reflects all material information
that might reasonably call into question the reliability and
reporting of any information from a confidential human source
that is used in the application;
``(3) a complete file documenting each factual assertion in
an application is maintained;
``(4) the applicant coordinates with the appropriate
elements of the intelligence community (as defined in section
3 of the National Security Act of 1947 (50 U.S.C. 3003)),
concerning any prior or existing relationship with the target
of any surveillance, search, or other means of investigation,
and discloses any such relationship in the application;
``(5) before any application targeting a United States
person is made, the applicant Federal officer shall document
that the officer has collected and reviewed for accuracy and
completeness supporting documentation for each factual
assertion in the application; and
``(6) the applicant Federal agency establish compliance and
auditing mechanisms on an annual basis to assess the efficacy
of the accuracy procedures that have been adopted and report
such findings to the Attorney General.
``(b) Statement and Certification of Accuracy Procedures.--
Any Federal officer making an application for a court order
under this Act shall include with the application--
``(1) a description of the accuracy procedures employed by
the officer or the officer's designee; and
``(2) a certification that the officer or the officer's
designee has collected and reviewed for accuracy and
completeness--
``(A) supporting documentation for each factual assertion
contained in the application;
``(B) all information that might reasonably call into
question the accuracy of the information or the
reasonableness of any assessment in the application, or
otherwise raises doubts about the requested findings; and
``(C) all material information that might reasonably call
into question the reliability and reporting of any
information from any confidential human source that is used
in the application.
``(c) Necessary Finding for Court Orders.--A judge may not
enter an order under this Act unless the judge finds, in
addition to any other findings required under this Act, that
the accuracy procedures described in the application for the
order, as required under subsection (b)(1), are actually
accuracy procedures as defined in this section.''.
(2) Technical amendment.--The table of contents of the
Foreign Intelligence Surveillance Act of 1978, as amended by
subsection (a), is amended by inserting after the item
relating to section 901 the following:
``Sec. 902. Certification regarding accuracy procedures.''.
(c) Effective Date.--The amendments made by this section
shall take effect on the date of enactment of this Act and
shall apply with respect to applications under the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) that are made on or after, or are pending on, that
date.
SEC. 1086. ANNUAL REPORTING ON ACCURACY AND COMPLETENESS OF
APPLICATIONS.
Section 603 (50 U.S.C. 1873) is amended--
(1) by redesignating subsection (e) as subsection (f); and
(2) by inserting after subsection (d) the following:
``(e) Annual Report by DOJ Inspector General on Accuracy
and Completeness of Applications.--
[[Page S5737]]
``(1) Definition of appropriate committees of congress.--In
this subsection, the term `appropriate committees of
Congress' means--
``(A) the Committee on the Judiciary and the Select
Committee on Intelligence of the Senate; and
``(B) the Committee on the Judiciary and the Permanent
Select Committee on Intelligence of the House of
Representatives.
``(2) Report.--In April of each year, the Inspector General
of the Department of Justice shall submit to the appropriate
committees of Congress and make public, subject to a
declassification review, a report setting forth, with respect
to the preceding calendar year, the following:
``(A) A summary of all accuracy or completeness reviews of
applications submitted to the Foreign Intelligence
Surveillance Court by the Federal Bureau of Investigation.
``(B) The total number of applications reviewed for
accuracy or completeness.
``(C) The total number of material errors or omissions
identified during such reviews.
``(D) The total number of nonmaterial errors or omissions
identified during such reviews.
``(E) The total number of instances in which facts
contained in an application were not supported by
documentation that existed in the applicable file being
reviewed at the time of the accuracy review.''.
______