I 

113TH CONGRESS 

1ST SESSION H. R. 3159 

To provide for the appointment of a public interest advocate in matters 

involving a significant legal interpretation or construction of the Foreign 

Intelligence Surveillance Act of 1978, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

SEPTEMBER 20, 2013 

Mr. SCHIFF (for himself and Mr. CARNEY) introduced the following bill; which 

was referred to the Committee on the Judiciary, and in addition to the 

Select Committee on Intelligence (Permanent Select), for a period to be 

subsequently determined by the Speaker, in each case for consideration 

of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To provide for the appointment of a public interest advocate 

in matters involving a significant legal interpretation or 

construction of 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 ‘‘Ensuring Adversarial 

5 Process in the FISA Court Act’’. 


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1 SEC. 2. PUBLIC INTEREST ADVOCATES FOR PROCEEDINGS 

2 UNDER THE FOREIGN INTELLIGENCE SUR3 VEILLANCE ACT OF 1978. 

4 (a) APPOINTMENT BY PRIVACY AND CIVIL LIB5 ERTIES OVERSIGHT BOARD.— 

6 (1) IN GENERAL.—Section 1061(d) of the Intel7 ligence Reform and Terrorism Prevention Act of 

8 2004 (42 U.S.C. 2000ee(d)) is amended by adding 

9 at the end the following new paragraph: 

10 ‘‘(5) APPOINTMENT OF PUBLIC INTEREST AD11 VOCATES.— 

12 ‘‘(A) APPOINTMENT.—The Board shall ap13 point attorneys to serve as public interest advo14 cates in proceedings before the Foreign Intel15 ligence Surveillance Court, a judge of the peti16 tion review pool, the Foreign Intelligence Sur17 veillance Court of Review, and the Supreme 

18 Court under the Foreign Intelligence Surveil19 lance Act of 1978 (50 U.S.C. 1801 et seq.). 

20 ‘‘(B) REQUIREMENTS.—In making ap21 pointments under subparagraph (A), the Board 

22 shall— 

23 ‘‘(i) consult with the Attorney Gen24 eral; 

25 ‘‘(ii) appoint attorneys with expertise 

26 and experience in cases involving privacy 


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1 and civil liberties who are not employees of 

2 the Federal Government; 

3 ‘‘(iii) consider candidates with dem4 onstrated expertise in and commitment to 

5 constitutional and legal protections for pri6 vacy and civil liberties; 

7 ‘‘(iv) consider the availability of can8 didates to appear before the Foreign Intel9 ligence Surveillance Court, a judge of the 

10 petition review pool, the Foreign Intel11 ligence Surveillance Court of Review, or 

12 the Supreme Court in urgent matters; 

13 ‘‘(v) consider the ability of candidates 

14 to obtain and maintain an appropriate se15 curity clearance to participate fully in mat16 ters before the Foreign Intelligence Sur17 veillance Court, a judge of the petition re18 view pool, the Foreign Intelligence Surveil19 lance Court of Review, and the Supreme 

20 Court under the Foreign Intelligence Sur21 veillance Act of 1978 (50 U.S.C. 1801 et 

22 seq.); and 

23 ‘‘(vi) provide notice to the Attorney 

24 General and the presiding judge of the 


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1 Foreign Intelligence Surveillance Court of 

2 all appointments under subparagraph (A). 

3 ‘‘(C) DUTIES.—Attorneys appointed under 

4 subparagraph (A) shall carry out the duties of 

5 the public interest advocate as described in sub6 section (i) of section 103 of the Foreign Intel7 ligence Surveillance Act of 1978 (50 U.S.C. 

8 1803). 

9 ‘‘(D) TECHNICAL EXPERTS.— 

10 ‘‘(i) APPOINTMENT.—The Board shall 

11 appoint technical and subject-matter ex12 perts, not employed by the Federal Gov13 ernment, to be available to assist public in14 terest advocates in performing the duties 

15 of such advocates under this paragraph. 

16 ‘‘(ii) QUALIFICATIONS.—In making 

17 appointments under clause (i), the Board 

18 shall consider individuals with expertise in 

19 technical issues likely to arise in cases re20 lating to the Foreign Intelligence Surveil21 lance Act of 1978 (50 U.S.C. 1801 et 

22 seq.), including computer networks, tele23 communications, encryption, and cyberse24 curity. 


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1 ‘‘(E) COMPENSATION.—The Attorney Gen2 eral shall, from funds made available to the De3 partment of Justice, compensate each attorney 

4 appointed under subparagraph (A) at the daily 

5 equivalent of the annual rate of basic pay for 

6 level III of the Executive Schedule for each day 

7 (including travel time) during which such attor8 ney is engaged in the actual performance of du9 ties under subsection (i) of section 103 of the 

10 Foreign Intelligence Surveillance Act of 1978 

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

12 ‘‘(F) TRAVEL EXPENSES.—The Attorney 

13 General shall, from funds made available to the 

14 Department of Justice, provide each attorney 

15 appointed under subparagraph (A) with travel 

16 expenses, including per diem in lieu of subsist17 ence, in accordance with applicable provisions 

18 under subchapter I of chapter 57 of title 5, 

19 United States Code. 

20 ‘‘(G) SECURITY CLEARANCES.—The Presi21 dent shall ensure that attorneys appointed 

22 under subparagraph (A) and technical and sub23 ject-matter experts appointed under subpara24 graph (D)(i) are expeditiously provided appro25 priate security clearances to carry out the duVerDate Mar 15 2010 04:37 Sep 26, 2013 Jkt 029200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3159.IH H3159

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1 ties of the attorneys to the extent possible 

2 under the appropriate procedures and require3 ments and provided that such attorneys meet 

4 the criteria for receiving such security clear5 ances. 

6 ‘‘(H) DEFINITIONS.—In this paragraph: 

7 ‘‘(i) FOREIGN INTELLIGENCE SUR8 VEILLANCE COURT.—The term ‘Foreign 

9 Intelligence Surveillance Court’ means the 

10 court established under section 103(a) of 

11 the Foreign Intelligence Surveillance Act of 

12 1978 (50 U.S.C. 1803(a)). 

13 ‘‘(ii) FOREIGN INTELLIGENCE SUR14 VEILLANCE COURT OF REVIEW.—The term 

15 ‘Foreign Intelligence Surveillance Court of 

16 Review’ means the court established under 

17 section 103(b) of the Foreign Intelligence 

18 Surveillance Act of 1978 (50 U.S.C. 

19 1803(b)). 

20 ‘‘(iii) PETITION REVIEW POOL.—The 

21 term ‘petition review pool’ means the peti22 tion review pool established under section 

23 103(e) of the Foreign Intelligence Surveil24 lance Act of 1978 (50 U.S.C. 1803(e)).’’. 


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1 (2) INITIAL APPOINTMENT.—Not later than 

2 180 days after the date of the enactment of this Act, 

3 the Privacy and Civil Liberties Oversight Board 

4 shall appoint at least one attorney to serve as a pub5 lic interest advocate under paragraph (5) of section 

6 1061(d) of the Intelligence Reform and Terrorism 

7 Prevention Act of 2004 (42 U.S.C. 2000ee(d)), as 

8 added by subsection (a) of this section. 

9 (b) APPOINTMENT BY FOREIGN INTELLIGENCE SUR10 VEILLANCE COURT.—Section 103 of the Foreign Intel11 ligence Surveillance Court of 1978 (50 U.S.C. 1803) is 

12 amended by adding at the end the following new sub13 section: 

14 ‘‘(i)(1) In any matter before a covered court involving 

15 a significant interpretation or construction of a provision 

16 of this Act, including any novel legal, factual, or techno17 logical issue or an issue relating to the Fourth Amend18 ment to the Constitution of the United States, the court 

19 shall appoint one or more public interest advocates ap20 pointed under paragraph (5) of section 1061(d) of the In21 telligence Reform and Terrorism Prevention Act of 2004 

22 (42 U.S.C. 2000ee(d)) to represent the privacy and civil 

23 liberties interests of the people of the United States in 

24 the matter before the court. 


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1 ‘‘(2) A court that appoints a public interest advocate 

2 for a matter before the court under paragraph (1) shall— 

3 ‘‘(A) provide notice to the Attorney General and 

4 the Privacy and Civil Liberties Oversight Board of 

5 the appointment; and 

6 ‘‘(B) provide the Privacy and Civil Liberties 

7 Oversight Board with a summary of the issues in 

8 such matter that warranted such appointment. 

9 ‘‘(3) A public interest advocate appointed under para10 graph (1)— 

11 ‘‘(A) shall participate fully in the matter before 

12 the court for which such public interest advocate 

13 was appointed with the same rights and privileges as 

14 the Federal Government; 

15 ‘‘(B) shall represent the interests of the people 

16 of the United States in preserving privacy and civil 

17 liberties in such matter, including with respect to 

18 the impact of such matter on the rights of the peo19 ple of the United States under the Fourth Amend20 ment to the Constitution of the United States; 

21 ‘‘(C) shall have access to all relevant evidence 

22 in such matter and may petition the court to order 

23 the Federal Government to produce documents, ma24 terials, or other evidence necessary to perform the 

25 duties of the public interest advocate; 


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1 ‘‘(D) may file timely motions and briefs, in ac2 cordance with the procedures of the court, and shall 

3 be given the opportunity by the court to respond to 

4 motions or filings made by the Federal Government 

5 in accordance with such procedures; and 

6 ‘‘(E) may request a rehearing or en banc con7 sideration of a decision of the court. 

8 ‘‘(4)(A) In matters before the court established under 

9 subsection (a) in which a public interest advocate has been 

10 appointed and the court believes the case involves a ques11 tion of law in which there is substantial ground for dif12 ference of opinion, the court may by certification at any 

13 time, including following the rendering of a final judg14 ment, request review by the court established under sub15 section (b). 

16 ‘‘(B) In matters before the court established under 

17 subsection (b) in which a public interest advocate has been 

18 appointed and the court believes the case involves a ques19 tion of law in which there is substantial ground for dif20 ference of opinion, the court may by certification at any 

21 time, including following the rendering of a final judg22 ment, request review by the Supreme Court. 

23 ‘‘(C) In any matter in which a court makes a certifi24 cation for review of any ruling or question of law as pro25 vided in subparagraph (A) and (B), the United States and 


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1 the public interest advocate shall be given opportunity to 

2 provide written briefs or arguments related to the decision 

3 by the court established under subsection (b) or the Su4 preme Court to review a ruling. 

5 ‘‘(5) A covered court may, sua sponte and upon a 

6 finding that the court would benefit from additional views, 

7 permit and facilitate participation by amicus curiae, in8 cluding participation in oral argument if appropriate, in 

9 proceedings before such court. Such court may issue ap10 propriate orders to facilitate the participation of amicus 

11 curiae. 

12 ‘‘(6) The Attorney General shall ensure that each 

13 public interest advocate appointed under paragraph (1) 

14 for a matter before a covered court has access to office 

15 space and materials necessary to fully participate in such 

16 matter, including, as necessary, access to appropriately se17 cured computers, communication devices, and facilities. 

18 ‘‘(7) In this subsection, the term ‘covered court’ 

19 means the court established under subsection (a), the 

20 court established under subsection (b), a judge of the peti21 tion review pool established under subsection (e), or the 

22 Supreme Court.’’. 

Æ 


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