Ensuring Adversarial Process in the FISA Court Act

Summary: Ensuring Adversarial Process in the FISA Court Act - Amends the Intelligence Reform and Terrorism Prevention Act of 2004 to require the Privacy and Civil Liberties Oversight Board (an independent agency that reviews executive branch actions taken to protect the nation from terrorism in order to ensure a balance with privacy and civil liberties) to appoint: (1) attorneys to serve as public interest advocates in proceedings before the Foreign Intelligence Surveillance Court (FISC), a judge of the petition review pool, the Foreign Intelligence Surveillance Court of Review (FISCR), and the Supreme Court under the Foreign Intelligence Surveillance Act of 1978 (FISA); and (2) technical and subject-matter experts (including experts of computer networks, telecommunications, encryption, and cybersecurity), not employed by the federal government, to be available to assist such advocates in performing their duties. Requires such courts, in any matter involving a significant interpretation or construction of FISA, to appoint at least one public interest advocate who will: (1) participate fully with the same rights and privileges as the federal government; (2) represent the interests of the people of the United States in preserving privacy and civil liberties, including with respect to rights under the Fourth Amendment to the Constitution; and (3) have access to all relevant evidence as well as the authority to petition the court to order the government to produce other necessary evidence. Authorizes such advocates to file motions and briefs, respond to motions or filings made by the federal government, and request rehearings or en banc consideration of a decision.  Permits the FISC to request review by the FISCR, and permits the FISCR to request review by the Supreme Court, when matters before such courts in which a public interest advocate has been appointed involve a question of law in which there is substantial ground for difference of opinion.  Requires the United States and the public interest advocate, when a court has requested such a review, to be given an opportunity to provide written briefs or arguments related to a decision by the FISCR or the Supreme Court to review a ruling. Allows each relevant court, upon a finding that it would benefit from additional views, to permit participation by amicus curiae.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Ensuring Adversarial Process in the 
FISA Court Act''.

SEC. 2. PUBLIC INTEREST ADVOCATES FOR PROCEEDINGS UNDER THE FOREIGN 
              INTELLIGENCE SURVEILLANCE ACT OF 1978.

    (a) Appointment by Privacy and Civil Liberties Oversight Board.--
            (1) In general.--Section 1061(d) of the Intelligence Reform 
        and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee(d)) is 
        amended by adding at the end the following new paragraph:
            ``(5) Appointment of public interest advocates.--
                    ``(A) Appointment.--The Board shall appoint 
                attorneys to serve as public interest advocates in 
                proceedings before the Foreign Intelligence 
                Surveillance Court, a judge of the petition review 
                pool, the Foreign Intelligence Surveillance Court of 
                Review, and the Supreme Court under the Foreign 
                Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
                et seq.).
                    ``(B) Requirements.--In making appointments under 
                subparagraph (A), the Board shall--
                            ``(i) consult with the Attorney General;
                            ``(ii) appoint attorneys with expertise and 
                        experience in cases involving privacy and civil 
                        liberties who are not employees of the Federal 
                        Government;
                            ``(iii) consider candidates with 
                        demonstrated expertise in and commitment to 
                        constitutional and legal protections for 
                        privacy and civil liberties;
                            ``(iv) consider the availability of 
                        candidates to appear before the Foreign 
                        Intelligence Surveillance Court, a judge of the 
                        petition review pool, the Foreign Intelligence 
                        Surveillance Court of Review, or the Supreme 
                        Court in urgent matters;
                            ``(v) consider the ability of candidates to 
                        obtain and maintain an appropriate security 
                        clearance to participate fully in matters 
                        before the Foreign Intelligence Surveillance 
                        Court, a judge of the petition review pool, the 
                        Foreign Intelligence Surveillance Court of 
                        Review, and the Supreme Court under the Foreign 
                        Intelligence Surveillance Act of 1978 (50 
                        U.S.C. 1801 et seq.); and
                            ``(vi) provide notice to the Attorney 
                        General and the presiding judge of the Foreign 
                        Intelligence Surveillance Court of all 
                        appointments under subparagraph (A).
                    ``(C) Duties.--Attorneys appointed under 
                subparagraph (A) shall carry out the duties of the 
                public interest advocate as described in subsection (i) 
                of section 103 of the Foreign Intelligence Surveillance 
                Act of 1978 (50 U.S.C. 1803).
                    ``(D) Technical experts.--
                            ``(i) Appointment.--The Board shall appoint 
                        technical and subject-matter experts, not 
                        employed by the Federal Government, to be 
                        available to assist public interest advocates 
                        in performing the duties of such advocates 
                        under this paragraph.
                            ``(ii) Qualifications.--In making 
                        appointments under clause (i), the Board shall 
                        consider individuals with expertise in 
                        technical issues likely to arise in cases 
                        relating to the Foreign Intelligence 
                        Surveillance Act of 1978 (50 U.S.C. 1801 et 
                        seq.), including computer networks, 
                        telecommunications, encryption, and 
                        cybersecurity.
                    ``(E) Compensation.--The Attorney General shall, 
                from funds made available to the Department of Justice, 
                compensate each attorney appointed under subparagraph 
                (A) at the daily equivalent of the annual rate of basic 
                pay for level III of the Executive Schedule for each 
                day (including travel time) during which such attorney 
                is engaged in the actual performance of duties under 
                subsection (i) of section 103 of the Foreign 
                Intelligence Surveillance Act of 1978 (50 U.S.C. 1803).
                    ``(F) Travel expenses.--The Attorney General shall, 
                from funds made available to the Department of Justice, 
                provide each attorney appointed under subparagraph (A) 
                with travel expenses, including per diem in lieu of 
                subsistence, in accordance with applicable provisions 
                under subchapter I of chapter 57 of title 5, United 
                States Code.
                    ``(G) Security clearances.--The President shall 
                ensure that attorneys appointed under subparagraph (A) 
                and technical and subject-matter experts appointed 
                under subparagraph (D)(i) are expeditiously provided 
                appropriate security clearances to carry out the duties 
                of the attorneys to the extent possible under the 
                appropriate procedures and requirements and provided 
                that such attorneys meet the criteria for receiving 
                such security clearances.
                    ``(H) Definitions.--In this paragraph:
                            ``(i) Foreign intelligence surveillance 
                        court.--The term `Foreign Intelligence 
                        Surveillance Court' means the court established 
                        under section 103(a) of the Foreign 
                        Intelligence Surveillance Act of 1978 (50 
                        U.S.C. 1803(a)).
                            ``(ii) Foreign intelligence surveillance 
                        court of review.--The term `Foreign 
                        Intelligence Surveillance Court of Review' 
                        means the court established under section 
                        103(b) of the Foreign Intelligence Surveillance 
                        Act of 1978 (50 U.S.C. 1803(b)).
                            ``(iii) Petition review pool.--The term 
                        `petition review pool' means the petition 
                        review pool established under section 103(e) of 
                        the Foreign Intelligence Surveillance Act of 
                        1978 (50 U.S.C. 1803(e)).''.
            (2) Initial appointment.--Not later than 180 days after the 
        date of the enactment of this Act, the Privacy and Civil 
        Liberties Oversight Board shall appoint at least one attorney 
        to serve as a public interest advocate under paragraph (5) of 
        section 1061(d) of the Intelligence Reform and Terrorism 
        Prevention Act of 2004 (42 U.S.C. 2000ee(d)), as added by 
        subsection (a) of this section.
    (b) Appointment by Foreign Intelligence Surveillance Court.--
Section 103 of the Foreign Intelligence Surveillance Court of 1978 (50 
U.S.C. 1803) is amended by adding at the end the following new 
subsection:
    ``(i)(1) In any matter before a covered court involving a 
significant interpretation or construction of a provision of this Act, 
including any novel legal, factual, or technological issue or an issue 
relating to the Fourth Amendment to the Constitution of the United 
States, the court shall appoint one or more public interest advocates 
appointed under paragraph (5) of section 1061(d) of the Intelligence 
Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee(d)) to 
represent the privacy and civil liberties interests of the people of 
the United States in the matter before the court.
    ``(2) A court that appoints a public interest advocate for a matter 
before the court under paragraph (1) shall--
            ``(A) provide notice to the Attorney General and the 
        Privacy and Civil Liberties Oversight Board of the appointment; 
        and
            ``(B) provide the Privacy and Civil Liberties Oversight 
        Board with a summary of the issues in such matter that 
        warranted such appointment.
    ``(3) A public interest advocate appointed under paragraph (1)--
            ``(A) shall participate fully in the matter before the 
        court for which such public interest advocate was appointed 
        with the same rights and privileges as the Federal Government;
            ``(B) shall represent the interests of the people of the 
        United States in preserving privacy and civil liberties in such 
        matter, including with respect to the impact of such matter on 
        the rights of the people of the United States under the Fourth 
        Amendment to the Constitution of the United States;
            ``(C) shall have access to all relevant evidence in such 
        matter and may petition the court to order the Federal 
        Government to produce documents, materials, or other evidence 
        necessary to perform the duties of the public interest 
        advocate;
            ``(D) may file timely motions and briefs, in accordance 
        with the procedures of the court, and shall be given the 
        opportunity by the court to respond to motions or filings made 
        by the Federal Government in accordance with such procedures; 
        and
            ``(E) may request a rehearing or en banc consideration of a 
        decision of the court.
    ``(4)(A) In matters before the court established under subsection 
(a) in which a public interest advocate has been appointed and the 
court believes the case involves a question of law in which there is 
substantial ground for difference of opinion, the court may by 
certification at any time, including following the rendering of a final 
judgment, request review by the court established under subsection (b).
    ``(B) In matters before the court established under subsection (b) 
in which a public interest advocate has been appointed and the court 
believes the case involves a question of law in which there is 
substantial ground for difference of opinion, the court may by 
certification at any time, including following the rendering of a final 
judgment, request review by the Supreme Court.
    ``(C) In any matter in which a court makes a certification for 
review of any ruling or question of law as provided in subparagraph (A) 
and (B), the United States and the public interest advocate shall be 
given opportunity to provide written briefs or arguments related to the 
decision by the court established under subsection (b) or the Supreme 
Court to review a ruling.
    ``(5) A covered court may, sua sponte and upon a finding that the 
court would benefit from additional views, permit and facilitate 
participation by amicus curiae, including participation in oral 
argument if appropriate, in proceedings before such court. Such court 
may issue appropriate orders to facilitate the participation of amicus 
curiae.
    ``(6) The Attorney General shall ensure that each public interest 
advocate appointed under paragraph (1) for a matter before a covered 
court has access to office space and materials necessary to fully 
participate in such matter, including, as necessary, access to 
appropriately secured computers, communication devices, and facilities.
    ``(7) In this subsection, the term `covered court' means the court 
established under subsection (a), the court established under 
subsection (b), a judge of the petition review pool established under 
subsection (e), or the Supreme Court.''.