[Congressional Record Volume 170, Number 69 (Friday, April 19, 2024)]
[Senate]
[Pages S2937-S2938]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 1840. 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; 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''.
(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.
``(B) Declassification of referrals.--For purposes of
section 602, a petition filed under subparagraph (A) 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
[[Page S2938]]
``(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 applicant or
agency by which the applicant is employed 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 applicant or
agency by which the applicant is employed 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.
``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 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 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.
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