Sec. 401. Office of the Special Advocate
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The Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 et seq. ) is amended by adding at the end the following new title: In this title: The term decision means a decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review. The terms Foreign Intelligence Surveillance Court and Court mean the court established under section 103(a) and the petition review pool established under section 103(e).
The terms Foreign Intelligence Surveillance Court of Review and Court of Review mean the court of review established under section 103(b). The term Office means the Office of the Special Advocate established under section 902(a). 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). The term Special Advocate means the Special Advocate appointed under section 902(b).
There is established within the judicial branch of the United States an Office of the Special Advocate. The head of the Office is the Special Advocate. The Chief Justice of the United States 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 Chief Justice a list of not less than 5 qualified candidates to serve as Special Advocate. The Board shall select candidates for such list whom the Board believes will be zealous and effective advocates in defense of civil liberties and consider with respect to each potential candidate— the litigation and other professional experience of such candidate; the experience of such candidate in areas of law that the Special Advocate is likely to encounter in the course of the duties of the Special Advocate; and the demonstrated commitment of such candidate to civil liberties.
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 3 years and may be removed 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 Chief Justice of the United States may appoint an Acting Special Advocate from among the qualified employees of the Office. If there are no such qualified employees, the Chief Justice 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 may appoint and terminate and fix the compensation of employees of the Office without regard to the provisions of title 5, United States Code, governing appointments in the competitive service. The Special Advocate— may consider any request for consultation by a party who has been served with an order or directive issued under this Act requiring the party to provide information, facilities, or assistance to the Federal Government; may request to participate in a proceeding before the Foreign Intelligence Surveillance Court; shall participate in such proceeding if such request is granted; shall participate in a proceeding before the Court if appointed to participate by the Court under section 903(a); may request reconsideration of a decision of the Court under section 903(b); may appeal or seek review of a decision of the Court or the Foreign Intelligence Surveillance Court of Review under section 904; and shall participate in such appeal or review.
The Attorney General shall provide to the Special Advocate each application submitted to a judge of the Foreign Intelligence Surveillance Court under this Act at the same time as the Attorney General submits such applications. The Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review shall provide to the Special Advocate access to each decision of the Court and the Court of Review, respectively, issued after the date of the enactment of the USA FREEDOM Act and all documents and other material relevant to such decision in complete, unredacted form.
The Special Advocate shall vigorously advocate before the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review, as appropriate, in support of legal interpretations that protect individual privacy and civil liberties. The Special Advocate may delegate to a competent outside counsel who has or is able to obtain an appropriate security clearance any duty or responsibility of the Special Advocate set out in subparagraph (C), (D), or
(G)of paragraph
(1)with respect to participation in a matter before the Court, the Court of Review, or the Supreme Court of the United States. The Court or the Court of Review, as appropriate, shall order any agency, department, or entity to make available to the Special Advocate, or appropriate outside counsel if the Special Advocate has delegated duties or responsibilities to the outside counsel under paragraph (4), any documents or other material necessary to carry out the duties described in paragraph (1). 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, appropriate employees of the Office, and outside counsel to whom the Special Advocate delegates a duty or responsibility under subsection (c)(4) with the security clearances necessary to carry out the duties of the Special Advocate. The Foreign Intelligence Surveillance Court may appoint the Special Advocate to participate in a proceeding before the Court. If the Special Advocate is appointed to participate in a Court proceeding pursuant to paragraph (1), the Special Advocate shall have standing as a party before the Court in that proceeding. The Special Advocate may move the Court to reconsider any decision of the Court made after the date of the enactment of the USA FREEDOM Act by petitioning the 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. The Court shall have discretion to grant or deny a motion for reconsideration made pursuant to paragraph (1). The Special Advocate may file a motion with the Court to permit and facilitate participation of amici curiae, including participation in oral argument if appropriate, in any proceeding. The Court shall have the discretion to grant or deny such a motion. The Court may, sua sponte, permit and facilitate participation by amici curiae, including participation in oral argument if appropriate, in proceedings before the Court. Not later than 180 days after the date of the enactment of USA FREEDOM Act, the Court shall promulgate regulations to provide the public with information sufficient to allow interested parties to participate as amici curiae. The Special Advocate may appeal any decision of the Foreign Intelligence Surveillance Court issued after the date of the enactment of the USA FREEDOM Act not later than 90 days after the date on which the decision is issued. If the Special Advocate appeals a decision of the Court pursuant to paragraph (1), the Special Advocate shall have standing as a party before the Foreign Intelligence Surveillance Court of Review in such appeal. The Court of Review shall review any Foreign Intelligence Surveillance Court decision appealed by the Special Advocate and issue a decision in such appeal, unless it would be apparent to all reasonable jurists that such decision is dictated by statute or by precedent. The standard for a mandatory review of a Foreign Intelligence Surveillance Court decision pursuant to paragraph
(3)shall be— de novo with respect to issues of law; and clearly erroneous with respect to determination of facts. The Court of Review shall accept amici curiae briefs from interested parties in all mandatory reviews pursuant to paragraph
(3)and shall provide for amici curiae participation in oral argument if appropriate. Not later than 180 days after the date of the enactment of the USA FREEDOM Act, the Court of Review shall promulgate regulations to provide the public with information sufficient to allow interested parties to participate as amici curiae. The Special Advocate may seek a writ of certiorari from the Supreme Court of the United States for review of any decision of the Foreign Intelligence Surveillance Court of Review. 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. The Attorney General shall publicly disclose— all decisions issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review after July 10, 2003, that include a significant construction or interpretation of law; any decision of the Court appealed by the Special Advocate pursuant to this title; and any Court of Review decision that is issued after an appeal by the Special Advocate. For each disclosure required by subsection
(a)with respect to a decision, the Attorney General shall make available to the public documents sufficient— to identify with particularity each legal question addressed by the decision and how such question was resolved; to describe in general terms the context in which the matter arises; to describe the construction or interpretation of any statute, constitutional provision, or other legal authority relied on by the decision; and to indicate whether the decision departed from any prior decision of the Court or Court of Review. The Attorney General shall satisfy the disclosure requirements in subsection
(b)by— releasing a Court or Court of Review decision in its entirety or as redacted; releasing a summary of a Court or Court of Review decision; or releasing an application made to the Court, briefs filed before the Court or the Court of Review, or other materials, in full or as redacted. 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. The Attorney General shall disclose a decision issued prior to the date of the enactment of the USA FREEDOM Act that is required to be disclosed under subsection (a)(1) not later than 180 days after the date of the enactment of such Act. The Attorney General shall release Court decisions appealed by the Special Advocate not later than 30 days after the date on which the appeal is filed. The Attorney General shall release Court of Review decisions for which the Special Advocate seeks a writ of certiorari not later than 90 days after the date on which the petition is filed. The Special Advocate may petition the Court or the Court of Review to order— the public disclosure of a decision of the Court or Court of Review, and documents or other material relevant to such a decision, previously designated as classified information; or the release of an unclassified summary of such decisions and documents. 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. The Special Advocate shall provide to the Attorney General a copy of each petition filed under paragraph (1). The Attorney General may oppose a petition filed under paragraph
(1)by submitting any objections in writing to the Court or the Court of Review, as appropriate, not later than 90 days after the date such petition was submitted. 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 Court or the Court of Review, as appropriate, shall declassify and make readily available to the public any decision, document, or other material requested in such petition, to the greatest extent possible, consistent with legitimate national security considerations. The Special Advocate may not file a petition under paragraph
(1)until 181 days after the date of the enactment of the USA FREEDOM Act, except with respect to a decision appealed by the Special Advocate. The Special Advocate shall submit to Congress an annual report on the implementation of this title. Each annual report submitted under subsection
(a)shall— detail the activities of the Office of the Special Advocate; provide an assessment of the effectiveness of this title; and propose any new legislation to improve the functioning of the Office or the operation of the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review that the Special Advocate considers appropriate. . The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978, as amended by section 101(c)(2) of this Act, is further amended by adding at the end the following new items: TITLE IX—OFFICE OF THE SPECIAL ADVOCATE Sec. 901. Definitions. Sec. 902. Office of the Special Advocate. Sec. 903. Advocacy before the Foreign Intelligence Surveillance Court. Sec. 904. Appellate review. Sec. 905. Disclosure. Sec. 906. Annual report to Congress. .
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Sec. 401
Office of the Special Advocate
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