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113th CONGRESS
  1st Session
                                S. 1467

To establish the Office of the Special Advocate to provide advocacy in 
      cases before courts established by the Foreign Intelligence 
            Surveillance Act of 1978 and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             August 1, 2013

   Mr. Blumenthal (for himself, Mrs. Murray, Mr. Wyden, Mr. Udall of 
 Colorado, Mr. Merkley, Mr. Udall of New Mexico, Mrs. Gillibrand, Mr. 
   Coons, Mr. Whitehouse, Mr. Tester, Mr. Franken, Ms. Baldwin, Mr. 
   Heinrich, Mr. Markey, Ms. Hirono, and Mr. Schatz) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
To establish the Office of the Special 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 Act:
            (1) Decision.--The term ``decision'' means a decision, 
        order, or opinion issued by the FISA Court or the FISA Court of 
        Review.
            (2) FISA.--The term ``FISA'' means the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
            (3) FISA court.--The term ``FISA Court'' means the court 
        established under section 103(a) of FISA (50 U.S.C. 1803(a)).
            (4) 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)).
            (5) Office.--The term ``Office'' mean the Office of the 
        Special Advocate established under section (3)(a).
            (6) 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)).
            (7) Special advocate.--The term ``Special Advocate'' means 
        the Special Advocate appointed under section 3(b).

SEC. 3. OFFICE OF THE SPECIAL ADVOCATE.

    (a) Establishment.--There is established in the executive branch as 
an independent establishment, as defined in section 104 of title 5, 
United States Code, an Office of the Special Advocate.
    (b) Special Advocate.--
            (1) In general.--The head of the Office is the Special 
        Advocate.
            (2) Appointment and term.--
                    (A) Appointment.--The presiding judge of the FISA 
                Court of Review shall appoint the Special Advocate from 
                the list of candidates submitted under subparagraph 
                (B).
                    (B) List of candidates.--The Privacy and Civil 
                Liberties Oversight Board shall submit to the presiding 
                judge of the FISA Court of Review a list of not less 
                than 5 qualified candidates to serve as Special 
                Advocate.
                    (C) Security clearance.--An individual may be 
                appointed Special Advocate without regard to whether 
                the individual possesses a security clearance on the 
                date of the appointment.
                    (D) Term and dismissal.--A Special Advocate shall 
                be appointed for a term of 5 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 Special 
                Advocate. The reappointment of a Special Advocate shall 
                be made in the same manner as appointment of a Special 
                Advocate.
                    (F) Acting special advocate.--If the position of 
                Special Advocate is vacant, the presiding judge of the 
                FISA Court of Review may appoint an Acting Special 
                Advocate from among the qualified employees of the 
                Office. If there are no such qualified employees, the 
                presiding judge of the FISA Court of Review may appoint 
                an Acting Special Advocate from the most recent list of 
                candidates provided by the Privacy and Civil Liberties 
                Oversight Board pursuant to subparagraph (B). The 
                Acting Special Advocate shall have all of the powers of 
                a Special Advocate and shall serve until a Special 
                Advocate is appointed.
            (3) Employees.--The Special 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 Special Advocate and appropriate employees of 
the Office with the security clearances necessary to carry out the 
duties of the Special Advocate.
    (d) Duties and Authorities of the Special Advocate.--
            (1) In general.--The Special Advocate--
                    (A) shall review each application to the FISA Court 
                by the Attorney General;
                    (B) shall review each decision of the FISA Court 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) shall participate in a proceeding before the 
                FISA Court if appointed to participate by the FISA 
                Court under section 4(a);
                    (D) may request to participate in a proceeding 
                before the FISA Court;
                    (E) shall participate in such a proceeding if such 
                request is granted;
                    (F) may request reconsideration of a decision of 
                the FISA Court under section 4(b);
                    (G) may appeal or seek review of a decision of the 
                FISA Court or the FISA Court of Review under section 5; 
                and
                    (H) shall participate in such appeal or review.
            (2) Advocacy.--The Special Advocate shall protect 
        individual rights by vigorously advocating before the FISA 
        Court 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 Special Advocate--
                    (A) may delegate to a competent outside counsel any 
                duty or responsibility of the Special 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), 
                or (G) of paragraph (1).
            (4) Availability of documents and material.--The FISA Court 
        or the FISA Court of Review, as appropriate, shall order any 
        agency, department, or entity to make available to the Special 
        Advocate, or appropriate outside counsel if utilized by the 
        Special 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 Special 
        Advocate to participate in a FISA Court proceeding.
            (2) Standing.--If the Special Advocate is appointed to 
        participate in a FISA Court proceeding pursuant to paragraph 
        (1), the Special 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 Special 
        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 Special 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 special advocate.--The Special 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. APPELLATE REVIEW.

    (a) Appeal of FISA Court Decisions.--
            (1) Authority to appeal.--The Special Advocate may appeal 
        any decision of the FISA Court 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 Special Advocate appeals 
        a decision of the FISA Court pursuant to paragraph (1), the 
        Special 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 decision appealed by the Special Advocate 
        and issue a decision in such appeal.
            (4) Standard of review.--The standards for a mandatory 
        review of a FISA Court 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 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 Special 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 Special Advocate shall have standing 
        as a party.

SEC. 6. DISCLOSURE.

    (a) Requirement To Disclose.--The Attorney General shall publicly 
disclose--
            (1) all decisions issued by the FISA Court 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 appealed by the Special 
        Advocate pursuant to this Act; and
            (3) any FISA Court of Review decision that is issued after 
        an appeal by the Special 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 or FISA Court of Review.
    (c) Documents Described.--The Attorney General shall satisfy the 
disclosure requirements in subsection (b) by--
            (1) releasing a FISA Court or FISA Court of Review decision 
        in its entirety or as redacted;
            (2) releasing a summary of a FISA Court or FISA Court of 
        Review decision; or
            (3) releasing an application made to the FISA Court, briefs 
        filed before the FISA Court 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 decisions.--The Attorney General shall 
        release FISA Court decisions appealed by the Special 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 
        Special Advocate not later than 90 days after the date the 
        appeal is filed.
    (f) Petition by the Special Advocate.--
            (1) Authority to petition.--The Special Advocate may 
        petition the FISA Court or FISA Court of Review to order--
                    (A) the public disclosure of a decision of such a 
                Court, 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 
        Special Advocate proposes to have released publicly.
            (3) Role of the attorney general.--
                    (A) Copy of petition.--The Special 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 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 or 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, if such decision, document, or other material 
        pertain to a decision that contains a significant construction 
        or interpretation of law, to the greatest extent possible, 
        consistent with legitimate national security considerations.
            (5) Effective date.--The Special 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 Special Advocate.

SEC. 7. ANNUAL REPORT TO CONGRESS.

    (a) Requirement for Annual Report.--The Special Advocate shall 
submit to Congress an annual report on the implementation of this Act.
    (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 Act; 
        and
            (3) propose any new legislation to improve the functioning 
        of the Office or the operation of the FISA Court or the FISA 
        Court of Review.

SEC. 8. PRESERVATION OF RIGHTS.

    Nothing in this Act shall be construed--
            (1) to provide the Attorney General with authority to 
        prevent the FISA Court or FISA Court of Review from 
        declassifying decisions or releasing information pursuant to 
        this Act; 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.