II 

113TH CONGRESS 

1ST SESSION S. 1467 

To establish the Office of the Special Advocate to provide advocacy in cases 

before courts established by the Foreign Intelligence Surveillance Act 

of 1978 and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

AUGUST 1, 2013 

Mr. BLUMENTHAL (for himself, Mrs. MURRAY, Mr. WYDEN, Mr. UDALL of 

Colorado, Mr. MERKLEY, Mr. UDALL of New Mexico, Mrs. GILLIBRAND, 

Mr. COONS, Mr. WHITEHOUSE, Mr. TESTER, Mr. FRANKEN, Ms. BALDWIN, Mr. HEINRICH, Mr. MARKEY, Ms. HIRONO, and Mr. SCHATZ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 

A BILL 

To establish the Office of the Special Advocate to provide 

advocacy in cases before courts established by the Foreign Intelligence Surveillance Act of 1978 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, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘FISA Court Reform 

5 Act of 2013’’. 


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1 SEC. 2. DEFINITIONS. 

2 In this Act: 

3 (1) DECISION.—The term ‘‘decision’’ means a 

4 decision, order, or opinion issued by the FISA Court 

5 or the FISA Court of Review. 

6 (2) FISA.—The term ‘‘FISA’’ means the For7 eign Intelligence Surveillance Act of 1978 (50 

8 U.S.C. 1801 et seq.). 

9 (3) FISA COURT.—The term ‘‘FISA Court’’ 

10 means the court established under section 103(a) of 

11 FISA (50 U.S.C. 1803(a)). 

12 (4) FISA COURT OF REVIEW.—The term 

13 ‘‘FISA Court of Review’’ means the court of review 

14 established under section 103(b) of FISA (50 U.S.C. 

15 1803(b)). 

16 (5) OFFICE.—The term ‘‘Office’’ mean the Of17 fice of the Special Advocate established under sec18 tion (3)(a). 

19 (6) SIGNIFICANT CONSTRUCTION OR INTERPRE20 TATION OF LAW.—The term ‘‘significant construc21 tion or interpretation of law’’ means a significant 

22 construction or interpretation of a provision, as that 

23 term is construed under section 601(c) of FISA (50 

24 U.S.C. 1871(c)). 


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1 (7) SPECIAL ADVOCATE.—The term ‘‘Special 

2 Advocate’’ means the Special Advocate appointed 

3 under section 3(b). 

4 SEC. 3. OFFICE OF THE SPECIAL ADVOCATE. 

5 (a) ESTABLISHMENT.—There is established in the ex6 ecutive branch as an independent establishment, as de7 fined in section 104 of title 5, United States Code, an Of8 fice of the Special Advocate. 

9 (b) SPECIAL ADVOCATE.— 

10 (1) IN GENERAL.—The head of the Office is the 

11 Special Advocate. 

12 (2) APPOINTMENT AND TERM.— 

13 (A) APPOINTMENT.—The presiding judge 

14 of the FISA Court of Review shall appoint the 

15 Special Advocate from the list of candidates 

16 submitted under subparagraph (B). 

17 (B) LIST OF CANDIDATES.—The Privacy 

18 and Civil Liberties Oversight Board shall sub19 mit to the presiding judge of the FISA Court 

20 of Review a list of not less than 5 qualified can21 didates to serve as Special Advocate. 

22 (C) SECURITY CLEARANCE.—An individual 

23 may be appointed Special Advocate without re24 gard to whether the individual possesses a secu25 rity clearance on the date of the appointment. 


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1 (D) TERM AND DISMISSAL.—A Special Ad2 vocate shall be appointed for a term of 5 years 

3 and may be fired only for good cause shown, in4 cluding the demonstrated inability to qualify for 

5 an adequate security clearance. 

6 (E) REAPPOINTMENT.—There shall be no 

7 limit to the number of consecutive terms served 

8 by a Special Advocate. The reappointment of a 

9 Special Advocate shall be made in the same 

10 manner as appointment of a Special Advocate. 

11 (F) ACTING SPECIAL ADVOCATE.—If the 

12 position of Special Advocate is vacant, the pre13 siding judge of the FISA Court of Review may 

14 appoint an Acting Special Advocate from 

15 among the qualified employees of the Office. If 

16 there are no such qualified employees, the pre17 siding judge of the FISA Court of Review may 

18 appoint an Acting Special Advocate from the 

19 most recent list of candidates provided by the 

20 Privacy and Civil Liberties Oversight Board 

21 pursuant to subparagraph (B). The Acting Spe22 cial Advocate shall have all of the powers of a 

23 Special Advocate and shall serve until a Special 

24 Advocate is appointed. 


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1 (3) EMPLOYEES.—The Special Advocate is au2 thorized, without regard to the civil service laws and 

3 regulations, to appoint and terminate employees of 

4 the Office. 

5 (c) SECURITY CLEARANCES.—The appropriate de6 partments, agencies, and elements of the executive branch 

7 shall cooperate with the Office, to the extent possible 

8 under existing procedures and requirements, to expedi9 tiously provide the Special Advocate and appropriate em10 ployees of the Office with the security clearances necessary 

11 to carry out the duties of the Special Advocate. 

12 (d) DUTIES AND AUTHORITIES OF THE SPECIAL AD13 VOCATE.— 

14 (1) IN GENERAL.—The Special Advocate— 

15 (A) shall review each application to the 

16 FISA Court by the Attorney General; 

17 (B) shall review each decision of the FISA 

18 Court or the FISA Court of Review issued after 

19 the date of the enactment of this Act and all 

20 documents and other material relevant to such 

21 decision in a complete, unredacted form; 

22 (C) shall participate in a proceeding before 

23 the FISA Court if appointed to participate by 

24 the FISA Court under section 4(a); 


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1 (D) may request to participate in a pro2 ceeding before the FISA Court; 

3 (E) shall participate in such a proceeding 

4 if such request is granted; 

5 (F) may request reconsideration of a deci6 sion of the FISA Court under section 4(b); 

7 (G) may appeal or seek review of a deci8 sion of the FISA Court or the FISA Court of 

9 Review under section 5; and 

10 (H) shall participate in such appeal or re11 view. 

12 (2) ADVOCACY.—The Special Advocate shall 

13 protect individual rights by vigorously advocating be14 fore the FISA Court or the FISA Court of Review, 

15 as appropriate, in support of legal interpretations 

16 that minimize the scope of surveillance and the ex17 tent of data collection and retention. 

18 (3) UTILIZATION OF OUTSIDE COUNSEL.—The 

19 Special Advocate— 

20 (A) may delegate to a competent outside 

21 counsel any duty or responsibility of the Special 

22 Advocate with respect to participation in a mat23 ter before the FISA Court, the FISA Court of 

24 Review, or the Supreme Court of the United 

25 States; and 


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1 (B) may not delegate to outside counsel 

2 any duty or authority set out in subparagraph 

3 (A), (B), (D), (F), or (G) of paragraph (1). 

4 (4) AVAILABILITY OF DOCUMENTS AND MATE5 RIAL.—The FISA Court or the FISA Court of Re6 view, as appropriate, shall order any agency, depart7 ment, or entity to make available to the Special Ad8 vocate, or appropriate outside counsel if utilized by 

9 the Special Advocate under paragraph (3), any docu10 ments or other material necessary to carry out the 

11 duties described in paragraph (1). 

12 SEC. 4. ADVOCACY BEFORE THE FISA COURT. 

13 (a) APPOINTMENT TO PARTICIPATE.— 

14 (1) IN GENERAL.—The FISA Court may ap15 point the Special Advocate to participate in a FISA 

16 Court proceeding. 

17 (2) STANDING.—If the Special Advocate is ap18 pointed to participate in a FISA Court proceeding 

19 pursuant to paragraph (1), the Special Advocate 

20 shall have standing as a party before the FISA 

21 Court in that proceeding. 

22 (b) RECONSIDERATION OF A FISA COURT DECI23 SION.— 

24 (1) AUTHORITY TO MOVE FOR RECONSIDER25 ATION.—The Special Advocate may move the FISA 


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1 Court to reconsider any decision of the FISA Court 

2 made after the date of the enactment of this Act by 

3 petitioning the FISA Court not later than 30 days 

4 after the date on which all documents and materials 

5 relevant to the decision are made available to the 

6 Special Advocate. 

7 (2) DISCRETION OF THE FISA COURT.—The 

8 FISA Court shall have discretion to grant or deny 

9 a motion for reconsideration made pursuant to para10 graph (1). 

11 (c) AMICUS CURIAE PARTICIPATION.— 

12 (1) MOTION BY THE SPECIAL ADVOCATE.—The 

13 Special Advocate may file a motion with the FISA 

14 Court to permit and facilitate participation of ami15 cus curiae, including participation in oral argument 

16 if appropriate, in any proceeding. The FISA Court 

17 shall have the discretion to grant or deny such a mo18 tion. 

19 (2) FACILITATION BY THE FISA COURT.—The 

20 FISA Court may, sua sponte, permit and facilitate 

21 participation by amicus curiae, including participa22 tion in oral argument if appropriate, in proceedings 

23 before the FISA Court. 

24 (3) REGULATIONS.—Not later than 180 days 

25 after the date of the enactment of this Act, the 


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1 FISA Court shall promulgate rules to provide the 

2 public with information sufficient to allow interested 

3 parties to participate as amicus curiae. 

4 SEC. 5. APPELLATE REVIEW. 

5 (a) APPEAL OF FISA COURT DECISIONS.— 

6 (1) AUTHORITY TO APPEAL.—The Special Ad7 vocate may appeal any decision of the FISA Court 

8 issued after the date of the enactment of this Act 

9 not later than 90 days after the date the decision is 

10 issued, unless it would be apparent to all reasonable 

11 jurists that such decision is dictated by statute or by 

12 precedent handed down after such date of enact13 ment. 

14 (2) STANDING AS APPELLANT.—If the Special 

15 Advocate appeals a decision of the FISA Court pur16 suant to paragraph (1), the Special Advocate shall 

17 have standing as a party before the FISA Court of 

18 Review in such appeal. 

19 (3) MANDATORY REVIEW.—The FISA Court of 

20 Review shall review any FISA Court decision ap21 pealed by the Special Advocate and issue a decision 

22 in such appeal. 

23 (4) STANDARD OF REVIEW.—The standards for 

24 a mandatory review of a FISA Court decision pursu25 ant to paragraph (3) shall be— 


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1 (A) de novo with respect to issues of law; 

2 and 

3 (B) clearly erroneous with respect to deter4 mination of facts. 

5 (5) AMICUS CURIAE PARTICIPATION.— 

6 (A) IN GENERAL.—The FISA Court of Re7 view shall accept amicus curiae briefs from in8 terested parties in all mandatory reviews pursu9 ant to paragraph (3) and shall provide for ami10 cus participation in oral argument if appro11 priate. 

12 (B) REGULATIONS.—Not later than 180 

13 days after the date of the enactment of this 

14 Act, the FISA Court of Review shall promul15 gate rules to provide the public with informa16 tion sufficient to allow interested parties to par17 ticipate as amicus curiae. 

18 (b) REVIEW OF FISA COURT OF REVIEW DECI19 SIONS.— 

20 (1) AUTHORITY.—The Special Advocate may 

21 seek a writ of certiorari from the Supreme Court of 

22 the United States for review of any decision of the 

23 FISA Court of Review. 

24 (2) STANDING.—In any proceedings before the 

25 Supreme Court of the United States relating to a 


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1 petition of certiorari filed under paragraph (1) and 

2 any proceedings in a matter for which certiorari is 

3 granted, the Special Advocate shall have standing as 

4 a party. 

5 SEC. 6. DISCLOSURE. 

6 (a) REQUIREMENT TO DISCLOSE.—The Attorney 

7 General shall publicly disclose— 

8 (1) all decisions issued by the FISA Court or 

9 the FISA Court of Review after July 10, 2003, that 

10 include a significant construction or interpretation of 

11 law; 

12 (2) any decision of the FISA Court appealed by 

13 the Special Advocate pursuant to this Act; and 

14 (3) any FISA Court of Review decision that is 

15 issued after an appeal by the Special Advocate. 

16 (b) DISCLOSURE DESCRIBED.—For each disclosure 

17 required by subsection (a) with respect to a decision, the 

18 Attorney General shall make available to the public docu19 ments sufficient— 

20 (1) to identify with particularity each legal 

21 question addressed by the decision and how such 

22 question was resolved; 

23 (2) to describe in general terms the context in 

24 which the matter arises; 


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1 (3) to describe the construction or interpreta2 tion of any statute, constitutional provision, or other 

3 legal authority relied on by the decision; and 

4 (4) to indicate whether the decision departed 

5 from any prior decision of the FISA Court or FISA 

6 Court of Review. 

7 (c) DOCUMENTS DESCRIBED.—The Attorney General 

8 shall satisfy the disclosure requirements in subsection (b) 

9 by— 

10 (1) releasing a FISA Court or FISA Court of 

11 Review decision in its entirety or as redacted; 

12 (2) releasing a summary of a FISA Court or 

13 FISA Court of Review decision; or 

14 (3) releasing an application made to the FISA 

15 Court, briefs filed before the FISA Court or the 

16 FISA Court of Review, or other materials, in full or 

17 as redacted. 

18 (d) EXTENSIVE DISCLOSURE.—The Attorney Gen19 eral shall release as much information regarding the facts 

20 and analysis contained in a decision described in sub21 section (a) or documents described in subsection (c) as is 

22 consistent with legitimate national security concerns. 

23 (e) TIMING OF DISCLOSURE.— 

24 (1) DECISIONS ISSUED PRIOR TO ENACT25 MENT.—A decision issued prior to the date of the 


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1 enactment of this Act that is required to be disclosed 

2 under subsection (a)(1) shall be disclosed not later 

3 than 180 days after the date of the enactment of 

4 this Act. 

5 (2) FISA COURT DECISIONS.—The Attorney 

6 General shall release FISA Court decisions appealed 

7 by the Special Advocate not later than 30 days after 

8 the date the appeal is filed. 

9 (3) FISA COURT OF REVIEW DECISIONS.—The 

10 Attorney General shall release FISA Court of Re11 view decisions appealed by the Special Advocate not 

12 later than 90 days after the date the appeal is filed. 

13 (f) PETITION BY THE SPECIAL ADVOCATE.— 

14 (1) AUTHORITY TO PETITION.—The Special Ad15 vocate may petition the FISA Court or FISA Court 

16 of Review to order— 

17 (A) the public disclosure of a decision of 

18 such a Court, and documents or other material 

19 relevant to such a decision, previously des20 ignated as classified information; or 

21 (B) the release of an unclassified summary 

22 of such decisions and documents. 

23 (2) CONTENTS OF PETITION.—Each petition 

24 filed under paragraph (1) shall contain a detailed 

25 declassification proposal or a summary of the deciVerDate Mar 15 2010 01:19 Aug 09, 2013 Jkt 029200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S1467.IS S1467

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1 sion and documents that the Special Advocate pro2 poses to have released publicly. 

3 (3) ROLE OF THE ATTORNEY GENERAL.— 

4 (A) COPY OF PETITION.—The Special Ad5 vocate shall provide to the Attorney General a 

6 copy of each petition filed under paragraph (1). 

7 (B) OPPOSITION.—The Attorney General 

8 may oppose a petition filed under paragraph (1) 

9 by submitting any objections in writing to the 

10 FISA Court or the FISA Court of Review, as 

11 appropriate, not later than 90 days after the 

12 date such petition was submitted. 

13 (4) PUBLIC AVAILABILITY.—Not less than 91 

14 days after receiving a petition under paragraph (1), 

15 and taking into account any objections from the At16 torney General made under paragraph (3)(B), the 

17 FISA Court or FISA Court of Review, as appro18 priate, shall declassify and make readily available to 

19 the public any decision, document, or other material 

20 requested in such petition, if such decision, docu21 ment, or other material pertain to a decision that 

22 contains a significant construction or interpretation 

23 of law, to the greatest extent possible, consistent 

24 with legitimate national security considerations. 


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1 (5) EFFECTIVE DATE.—The Special Advocate 

2 may not file a petition under paragraph (1) until 

3 181 days after the date of the enactment of this Act, 

4 except with respect to a decision appealed by the 

5 Special Advocate. 

6 SEC. 7. ANNUAL REPORT TO CONGRESS. 

7 (a) REQUIREMENT FOR ANNUAL REPORT.—The Spe8 cial Advocate shall submit to Congress an annual report 

9 on the implementation of this Act. 

10 (b) CONTENTS.—Each annual report submitted 

11 under subsection (a) shall— 

12 (1) detail the activities of the Office; 

13 (2) provide an assessment of the effectiveness 

14 of this Act; and 

15 (3) propose any new legislation to improve the 

16 functioning of the Office or the operation of the 

17 FISA Court or the FISA Court of Review. 

18 SEC. 8. PRESERVATION OF RIGHTS. 

19 Nothing in this Act shall be construed— 

20 (1) to provide the Attorney General with au21 thority to prevent the FISA Court or FISA Court of 

22 Review from declassifying decisions or releasing in23 formation pursuant to this Act; and 

24 (2) to eliminate the public’s ability to secure in25 formation under section 552 of title 5, United States 


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1 Code (commonly known as the ‘‘Freedom of Infor2 mation Act’’) or any other provision of law. 

Æ 


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