Sec. 401. Appointment of amicus curiae
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Section 103 ( 50 U.S.C. 1803 ) is amended by adding at the end the following new subsection: In consultation with the Privacy and Civil Liberties Oversight Board, the presiding judges of the courts established under subsections
(a)and
(b)shall, not later than 180 days after the enactment of this subsection, jointly appoint not fewer than 5 attorneys to serve as special advocates, who shall serve pursuant to rules the presiding judges may establish. Such individuals shall be persons who possess expertise in privacy and civil liberties, intelligence collection, telecommunications, or any other relevant area of expertise and who are determined to be eligible for access to classified information necessary to participate in matters before the courts. A court established under subsection
(a)or (b), consistent with the requirement of subsection
(c)and any other statutory requirement that the court act expeditiously or within a stated time— shall designate a special advocate to serve as amicus curiae to assist such court in the consideration of any certification pursuant to subsection
(j)or any application for an order or review that, in the opinion of the court, presents a novel or significant interpretation of the law, unless the court issues a written finding that such appointment is not appropriate; and may designate or allow an individual or organization to serve as amicus curiae or to provide technical expertise in any other instance as such court deems appropriate. An application for an order or review shall be considered to present a novel or significant interpretation of the law if such application involves application of settled law to novel technologies or circumstances, or any other novel or significant construction or interpretation of any provision of law or of the Constitution of the United States, including any novel and significant interpretation of the term specific selection term . If a court established under subsection
(a)or
(b)designates a special advocate to participate as an amicus curiae in a proceeding, the special advocate— shall advocate, as appropriate, in support of legal interpretations that advance individual privacy and civil liberties; shall have access to all relevant legal precedent, and any application, certification, petition, motion, or such other materials as are relevant to the duties of the special advocate; may consult with any other special advocates regarding information relevant to any assigned case, including sharing relevant materials; and may request that the court appoint technical and subject matter experts, not employed by the Government, to be available to assist the special advocate in performing the duties of the special advocate. The Attorney General shall periodically brief or provide relevant materials to special advocates regarding constructions and interpretations of this Act and legal, technological and other issues related to actions authorized by this Act. A special advocate, experts appointed to assist a special advocate, or any other amicus or technical expert appointed by the court may have access to classified documents, information, and other materials or proceedings only if that individual is eligible for access to classified information and to the extent consistent with the national security of the United States. Nothing in this section shall be construed to require the Government to provide information to a special advocate, other amicus, or technical expert that is privileged from disclosure. The presiding judges of the courts established under subsections
(a)and
(b)shall notify the Attorney General of each exercise of the authority to appoint an individual to serve as amicus curiae under paragraph (1). A court established under subsection
(a)or
(b)may request and receive (including on a non-reimbursable basis) the assistance of the executive branch in the implementation of this subsection. A court established under subsection
(a)or
(b)may provide for the designation, appointment, removal, training, or other support for an individual appointed to serve as a special advocate under paragraph
(1)in a manner that is not inconsistent with this subsection. After issuing an order, a court established under subsection
(a)shall certify for review to the court established under subsection
(b)any question of law that the court determines warrants such review because of a need for uniformity or because consideration by the court established under subsection
(b)would serve the interests of justice. Upon certification of a question of law under this paragraph, the court established under subsection
(b)may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy. For any decision issued by the court of review established under subsection
(b)approving, in whole or in part, an application by the Government under this Act, such court may certify at any time, including after a decision, a question of law to be reviewed by the Supreme Court of the United States. Upon certification of an application under paragraph (1), the court of review established under subsection
(b)may designate a special advocate to provide briefing as prescribed by the Supreme Court. The Supreme Court may review any question of law certified under paragraph
(1)by the court of review established under subsection
(b)in the same manner as the Supreme Court reviews questions certified under section 1254(2) of title 28, United States Code. A special advocate designated in a proceeding pursuant to subsection (i)(2)(A) of this section may seek, at the conclusion of the proceeding in which the special advocate was designated, compensation for services provided pursuant to the designation. A special advocate seeking compensation shall be compensated in an amount reflecting fair compensation for the services provided, as determined by the court designating the special advocate and approved by the presiding judges of the courts established under subsections
(a)and (b). There are authorized to be appropriated to the United States courts such sums as may be necessary to carry out the provisions of this section. When so specified in appropriation acts, such appropriations shall remain available until expended. Payments from such appropriations shall be made under the supervision of the Director of the Administrative Office of the United States Courts. .
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Sec. 401
Appointment of amicus curiae
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