[Congressional Record Volume 170, Number 68 (Thursday, April 18, 2024)]
[Senate]
[Pages S2903-S2905]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 1836. Mr. LEE (for himself and Mr. Welch) submitted an amendment 
intended to be proposed by him to the bill H.R. 7888, to reform the 
Foreign Intelligence Surveillance Act of 1978; which was ordered to lie 
on the table; as follows:

       On page 19, strike line 22 and all that follows through 
     page 24, line 10, and insert the following:
       (b) Use of Amici Curiae in Foreign Intelligence 
     Surveillance Court Proceedings.--
       (1) Expansion of appointment authority.--
       (A) In general.--Section 103(i)(2) is amended--
       (i) by striking subparagraph (A) and inserting the 
     following:
       ``(A) shall, unless the court issues a finding that 
     appointment is not appropriate, 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;
       ``(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;
       ``(iii) presents or involves a sensitive investigative 
     matter;
       ``(iv) presents a request for approval of a new program, a 
     new technology, or a new use of existing technology;
       ``(v) presents a request for reauthorization of 
     programmatic surveillance; or
       ``(vi) otherwise presents novel or significant civil 
     liberties issues; and''; and
       (ii) in subparagraph (B), by striking ``an individual or 
     organization'' each place the term appears and inserting ``1 
     or more individuals or organizations''.

[[Page S2904]]

       (B) Definition of sensitive investigative matter.--Section 
     103(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).''.
       (2) Authority to seek review.--Section 103(i), as amended 
     by paragraph (1) of this subsection, is amended--
       (A) in paragraph (4)--
       (i) in the paragraph heading, by inserting ``; authority'' 
     after ``Duties'';
       (ii) by redesignating subparagraphs (A), (B), and (C) as 
     clauses (i), (ii), and (iii), respectively, and adjusting the 
     margins accordingly;
       (iii) in the matter preceding clause (i), as so 
     redesignated, by striking ``the amicus curiae shall'' and 
     inserting the following: ``the amicus curiae--
       ``(A) shall'';
       (iv) in subparagraph (A)(i), as so redesignated, 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
       (v) 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.'';
       (B) by redesignating paragraphs (7) through (12) as 
     paragraphs (8) through (13), respectively; and
       (C) 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.
       ``(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).''.
       (3) Access to information.--
       (A) Application and materials.--Section 103(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 
     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.''.
       (B) Clarification of access to certain information.--
     Section 103(i)(6) is amended--
       (i) in subparagraph (B), by striking ``may'' and inserting 
     ``shall''; and
       (ii) 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.''.
       (4) Definitions.--Section 101 is amended by adding at the 
     end the following:
       ``(q) The term `Foreign Intelligence Surveillance Court' 
     means the court established under section 103(a).
       ``(r) The term `Foreign Intelligence Surveillance Court of 
     Review' means the court established under section 103(b).''.
       (5) Technical amendments relating to striking section 5(c) 
     of the bill.--
       (A) Subsection (e) of section 603, as added by section 
     12(a) of this Act, is amended by striking ``section 103(m)'' 
     and inserting ``section 103(l)''.
       (B) Section 110(a), as added by section 15(b) of this Act, 
     is amended by striking ``section 103(m)'' and inserting 
     ``section 103(l)''.
       (C) Section 103 is amended by redesignating subsection (m), 
     as added by section 17 of this Act, as subsection (l).
       (6) Effective date.--The amendments made by this subsection 
     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.
       (c) Required Disclosure of Relevant Information in Foreign 
     Intelligence Surveillance Act of 1978 Applications.--
       (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--REQUIRED DISCLOSURE OF RELEVANT INFORMATION

     ``SEC. 901. DISCLOSURE OF RELEVANT INFORMATION.

       ``The Attorney General or any other Federal officer or 
     employee 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) Certification regarding accuracy procedures.--Title IX, 
     as added by paragraph (1) of this subsection, is amended by 
     adding at the end the following:

     ``SEC. 902. CERTIFICATION REGARDING ACCURACY PROCEDURES.

       ``(a) Definition of Accuracy Procedures.--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 (as defined in section 101) 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

[[Page S2905]]

     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.''.
       (3) Technical amendments to eliminate amendments made by 
     section 10 of the bill.--
       (A) Subsection (a) of section 104 is amended--
       (i) in paragraph (9), as amended by section 6(d)(1)(B) of 
     this Act, by striking ``and'' at the end;
       (ii) in paragraph (10), as added by section 6(d)(1)(C) of 
     this Act, by adding ``and'' at the end;
       (iii) in paragraph (11), as added by section 6(e)(1) of 
     this Act, by striking ``; and'' and inserting a period;
       (iv) by striking paragraph (12), as added by section 
     10(a)(1) of this Act; and
       (v) by striking paragraph (13), as added by section 
     10(b)(1) of this Act.
       (B) Subsection (a) of section 303 is amended--
       (i) in paragraph (8), as amended by section 6(e)(2)(B) of 
     this Act, by adding ``and'' at the end;
       (ii) in paragraph (9), as added by section 6(e)(2)(C) of 
     this Act, by striking ``; and'' and inserting a period;
       (iii) by striking paragraph (10), as added by section 
     10(a)(2) of this Act; and
       (iv) by striking paragraph (11), as added by section 
     10(b)(2) of this Act.
       (C) Subsection (c) of section 402, as amended by 
     subsections (a)(3) and (b)(3) of section 10 of this Act, is 
     amended--
       (i) in paragraph (2), by adding ``and'' at the end;
       (ii) in paragraph (3), by striking the semicolon and 
     inserting a period;
       (iii) by striking paragraph (4), as added by section 
     10(a)(3)(C) of this Act; and
       (iv) by striking paragraph (5), as added by section 
     10(b)(3)(C) of this Act.
       (D) Subsection (b)(2) of section 502, as amended by 
     subsections (a)(4) and (b)(4) of section 10 of this Act, is 
     amended--
       (i) in subparagraph (A), by adding ``and'' at the end;
       (ii) in subparagraph (B), by striking the semicolon and 
     inserting a period;
       (iii) by striking subparagraph (E), as added by section 
     10(a)(4)(C) of this Act; and
       (iv) by striking subparagraph (F), as added by section 
     10(b)(4)(C) of this Act.
       (E) Subsection (b)(1) of section 703, as amended by 
     subsections (a)(5)(A) and (b)(5)(A) of section 10 of this 
     Act, is amended--
       (i) in subparagraph (I), by adding ``and'' at the end;
       (ii) in subparagraph (J), by striking the semicolon and 
     inserting a period;
       (iii) by striking subparagraph (K), as added by section 
     10(a)(5)(A)(iii) of this Act; and
       (iv) by striking subparagraph (L), as added by section 
     10(b)(5)(A)(iii) of this Act.
       (F) Subsection (b) of section 704, as amended by 
     subsections (a)(5)(B) and (b)(5)(B) of section 10 of this 
     Act, is amended--
       (i) in paragraph (6), by adding ``and'' at the end;
       (ii) in paragraph (7), by striking the semicolon and 
     inserting a period;
       (iii) by striking paragraph (8), as added by section 
     10(a)(5)(B)(iii) of this Act; and
       (iv) by striking paragraph (9), as added by section 
     10(b)(5)(B)(iii) of this Act.
       (G)(i) The Attorney General shall not be required to issue 
     procedures under paragraph (7) of section 10(a) of this Act.
       (ii) Nothing in clause (i) shall be construed to modify the 
     requirement for the Attorney General to issue accuracy 
     procedures under section 902(a) of the Foreign Intelligence 
     Surveillance Act of 1978, as added by paragraph (2) of this 
     subsection.

                          ____________________