Sec. 3. Office of the Special Advocate

649 words·~3 min read·/bill/113/s/1467/is/section-3

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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. The head of the Office is the Special Advocate. The presiding judge of the FISA Court of Review shall appoint the Special Advocate from the list of candidates submitted under subparagraph (B). 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.

An individual may be appointed Special Advocate without regard to whether the individual possesses a security clearance on the date of the appointment. 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. 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.

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.

The Special Advocate is authorized, without regard to the civil service laws and regulations, to appoint and terminate employees of the Office. 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.

The Special Advocate— shall review each application to the FISA Court by the Attorney General; 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; shall participate in a proceeding before the FISA Court if appointed to participate by the FISA Court under section 4(a); may request to participate in a proceeding before the FISA Court; shall participate in such a proceeding if such request is granted; may request reconsideration of a decision of the FISA Court under section 4(b); may appeal or seek review of a decision of the FISA Court or the FISA Court of Review under section 5; and shall participate in such appeal or review.

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. The Special Advocate— 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 may not delegate to outside counsel any duty or authority set out in subparagraph (A), (B), (D), (F), or

(G)of paragraph (1). 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).