II 

113TH CONGRESS 

1ST SESSION S. 1130 

To require the Attorney General to disclose each decision, order, or opinion 

of a Foreign Intelligence Surveillance Court that includes significant 

legal interpretation of section 501 or 702 of the Foreign Intelligence 

Surveillance Act of 1978 unless such disclosure is not in the national 

security interest of the United States and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 11, 2013 

Mr. MERKLEY (for himself, Mr. LEE, Mr. HELLER, Mr. LEAHY, Mr. BEGICH, 

Mr. FRANKEN, Mr. TESTER, Mr. WYDEN, Mr. BLUMENTHAL, and Mr. 

PAUL) introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

To require the Attorney General to disclose each decision, 

order, or opinion of a Foreign Intelligence Surveillance 

Court that includes significant legal interpretation of section 501 or 702 of the Foreign Intelligence Surveillance 

Act of 1978 unless such disclosure is not in the national 

security interest of the United States and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Ending Secret Law 

3 Act’’. 

4 SEC. 2. FINDINGS. 

5 Congress finds the following: 

6 (1) Secret law is inconsistent with democratic 

7 governance. In order for the rule of law to prevail, 

8 the requirements of the law must be publicly discov9 erable. 

10 (2) The United States Court of Appeals for the 

11 Seventh Circuit stated in 1998 that the ‘‘idea of se12 cret laws is repugnant’’. 

13 (3) The open publication of laws and directives 

14 is a defining characteristic of government of the 

15 United States. The first Congress of the United 

16 States mandated that every ‘‘law, order, resolution, 

17 and vote [shall] be published in at least three of the 

18 public newspapers printed within the United 

19 States’’. 

20 (4) The practice of withholding decisions of the 

21 Foreign Intelligence Surveillance Court is at odds 

22 with the United States tradition of open publication 

23 of law. 

24 (5) The Foreign Intelligence Surveillance Court 

25 acknowledges that such Court has issued legally sig26 nificant interpretations of the Foreign Intelligence 


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1 Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) 

2 that are not accessible to the public. 

3 (6) The exercise of surveillance authorities 

4 under the Foreign Intelligence Surveillance Act of 

5 1978 (50 U.S.C. 1801 et seq.), as interpreted by se6 cret court opinions, potentially implicates the com7 munications of United States persons who are nec8 essarily unaware of such surveillance. 

9 (7) Section 501 of the Foreign Intelligence Sur10 veillance Act of 1978 (50 U.S.C. 1861), as amended 

11 by section 215 of the USA PATRIOT Act (Public 

12 Law 107–56; 115 Stat. 287), authorizes the Federal 

13 Bureau of Investigation to require the production of 

14 ‘‘any tangible things’’ and the extent of such author15 ity, as interpreted by secret court opinions, has been 

16 concealed from the knowledge and awareness of the 

17 people of the United States. 

18 (8) In 2010, the Department of Justice and the 

19 Office of the Director of National Intelligence estab20 lished a process to review and declassify opinions of 

21 the Foreign Intelligence Surveillance Court, but 

22 more than two years later no declassifications have 

23 been made. 


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1 SEC. 3. SENSE OF CONGRESS. 

2 It is the sense of Congress that each decision, order, 

3 or opinion issued by the Foreign Intelligence Surveillance 

4 Court or the Foreign Intelligence Surveillance Court of 

5 Review that includes significant construction or interpre6 tation of section 501 or section 702 of the Foreign Intel7 ligence Surveillance Act of 1978 (50 U.S.C. 1861 and 

8 1881a) should be declassified in a manner consistent with 

9 the protection of national security, intelligence sources and 

10 methods, and other properly classified and sensitive infor11 mation. 

12 SEC. 4. REQUIREMENT FOR DISCLOSURE OF DECISIONS, 

13 ORDERS, AND OPINIONS OF THE FOREIGN IN14 TELLIGENCE SURVEILLANCE COURT. 

15 (a) SECTION 501.— 

16 (1) IN GENERAL.—Section 501 of the Foreign 

17 Intelligence Surveillance Act of 1978 (50 U.S.C. 

18 1861) is amended by adding at the end the fol19 lowing: 

20 ‘‘(i) DISCLOSURE OF DECISIONS.— 

21 ‘‘(1) DECISION DEFINED.—In this subsection, 

22 the term ‘decision’ means any decision, order, or 

23 opinion issued by the Foreign Intelligence Surveil24 lance Court or the Foreign Intelligence Surveillance 

25 Court of Review that includes significant construc26 tion or interpretation of this section. 


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1 ‘‘(2) REQUIREMENT FOR DISCLOSURE.—Sub2 ject to paragraphs (3) and (4), the Attorney General 

3 shall declassify and make available to the public— 

4 ‘‘(A) each decision that is required to be 

5 submitted to committees of Congress under sec6 tion 601(c), not later than 45 days after such 

7 opinion is issued; and 

8 ‘‘(B) each decision issued prior to the date 

9 of the enactment of the Ending Secret Law Act 

10 that was required to be submitted to commit11 tees of Congress under section 601(c), not later 

12 than 180 days after such date of enactment. 

13 ‘‘(3) UNCLASSIFIED SUMMARIES.—Notwith14 standing paragraph (2) and subject to paragraph 

15 (4), if the Attorney General makes a determination 

16 that a decision may not be declassified and made 

17 available in a manner that protects the national se18 curity of the United States, including methods or 

19 sources related to national security, the Attorney 

20 General shall release an unclassified summary of 

21 such decision. 

22 ‘‘(4) UNCLASSIFIED REPORT.—Notwithstanding 

23 paragraphs (2) and (3), if the Attorney General 

24 makes a determination that any decision may not be 

25 declassified under paragraph (2) and an unclassified 


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1 summary of such decision may not be made available 

2 under paragraph (3), the Attorney General shall 

3 make available to the public an unclassified report 

4 on the status of the internal deliberations and proc5 ess regarding the declassification by personnel of 

6 Executive branch of such decisions. Such report 

7 shall include— 

8 ‘‘(A) an estimate of the number of deci9 sions that will be declassified at the end of such 

10 deliberations; and 

11 ‘‘(B) an estimate of the number of deci12 sions that, through a determination by the At13 torney General, shall remain classified to pro14 tect the national security of the United 

15 States.’’. 

16 (2) SECTION 702.—Section 702(l) of the For17 eign Intelligence Surveillance Act of 1978 (50 

18 U.S.C. 1881a(l)) is amended by adding at the end 

19 the following: 

20 ‘‘(4) DISCLOSURE OF DECISIONS.— 

21 ‘‘(A) DECISION DEFINED.—In this para22 graph, the term ‘decision’ means any decision, 

23 order, or opinion issued by the Foreign Intel24 ligence Surveillance Court or the Foreign Intel25 ligence Surveillance Court of Review that inVerDate Mar 15 2010 03:31 Jun 15, 2013 Jkt 029200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1130.IS S1130

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1 cludes significant construction or interpretation 

2 of this section. 

3 ‘‘(B) REQUIREMENT FOR DISCLOSURE.— 

4 Subject to subparagraphs (C) and (D), the At5 torney General shall declassify and make avail6 able to the public— 

7 ‘‘(i) each decision that is required to 

8 be submitted to committees of Congress 

9 under section 601(c), not later than 45 

10 days after such opinion is issued; and 

11 ‘‘(ii) each decision issued prior to the 

12 date of the enactment of the Ending Secret 

13 Law Act that was required to be submitted 

14 to committees of Congress under section 

15 601(c), not later than 180 days after such 

16 date of enactment. 

17 ‘‘(C) UNCLASSIFIED SUMMARIES.—Not18 withstanding subparagraph (B) and subject to 

19 subparagraph (D), if the Attorney General 

20 makes a determination that a decision may not 

21 be declassified and made available in a manner 

22 that protects the national security of the United 

23 States, including methods or sources related to 

24 national security, the Attorney General shall re25 lease an unclassified summary of such decision. 


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1 ‘‘(D) UNCLASSIFIED REPORT.—Notwith2 standing subparagraphs (B) and (C), if the At3 torney General makes a determination that any 

4 decision may not be declassified under subpara5 graph (B) and an unclassified summary of such 

6 decision may not be made available under sub7 paragraph (C), the Attorney General shall make 

8 available to the public an unclassified report on 

9 the status of the internal deliberations and 

10 process regarding the declassification by per11 sonnel of Executive branch of such decisions. 

12 Such report shall include— 

13 ‘‘(i) an estimate of the number of de14 cisions that will be declassified at the end 

15 of such deliberations; and 

16 ‘‘(ii) an estimate of the number of de17 cisions that, through a determination by 

18 the Attorney General, shall remain classi19 fied to protect the national security of the 

20 United States.’’. 

Æ 


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