I 

113TH CONGRESS 

1ST SESSION H. R. 3228 

To establish the Office of the Constitutional Advocate to provide advocacy 

in cases before courts established by the Foreign Intelligence Surveillance 

Act of 1978, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

OCTOBER 1, 2013 

Mr. VAN HOLLEN (for himself and Mr. JORDAN) 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 establish the Office of the Constitutional 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 title: 

3 (1) CONSTITUTIONAL ADVOCATE.—The term 

4 ‘‘Constitutional Advocate’’ means the Constitutional 

5 Advocate appointed under section 3(b). 

6 (2) DECISION.—The term ‘‘decision’’ means a 

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

8 or the FISA Court of Review. 

9 (3) FISA.—The term ‘‘FISA’’ means the For10 eign Intelligence Surveillance Act of 1978 (50 

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

12 (4) FISA COURT.—The term ‘‘FISA Court’’ 

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

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

15 (5) FISA COURT OF REVIEW.—The term 

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

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

18 1803(b)). 

19 (6) OFFICE.—The term ‘‘Office’’ means the Of20 fice of the Constitutional Advocate established under 

21 section 3(a). 

22 (7) PETITION REVIEW POOL.—The term ‘‘peti23 tion review pool’’ means the petition review pool es24 tablished by section 103(e) of FISA (50 U.S.C. 

25 1803(e)) or any member of that pool. 


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1 (8) SIGNIFICANT CONSTRUCTION OR INTERPRE2 TATION OF LAW.—The term ‘‘significant construc3 tion or interpretation of law’’ means a significant 

4 construction or interpretation of a provision, as that 

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

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

7 SEC. 3. OFFICE OF THE CONSTITUTIONAL ADVOCATE. 

8 (a) ESTABLISHMENT.—There is established within 

9 the judicial branch of the United States an Office of the 

10 Constitutional Advocate. 

11 (b) CONSTITUTIONAL ADVOCATE.— 

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

13 Constitutional Advocate. 

14 (2) APPOINTMENT AND TERM.— 

15 (A) APPOINTMENT.—The Chief Justice of 

16 the United States shall appoint the Constitu17 tional Advocate from the list of candidates sub18 mitted under subparagraph (B). 

19 (B) CANDIDATES.— 

20 (i) LIST OF CANDIDATES.—The Pri21 vacy and Civil Liberties Oversight Board 

22 shall submit to the Chief Justice a list of 

23 not less than 5 qualified candidates to 

24 serve as a Constitutional Advocate. 


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1 (ii) SELECTION OF CANDIDATES.—In 

2 preparing a list described in clause (i), the 

3 Privacy and Civil Liberties Oversight 

4 Board shall select candidates the Board 

5 believes will be zealous and effective advo6 cates in defense of civil liberties and con7 sider each potential candidate’s— 

8 (I) litigation and other profes9 sional experience; 

10 (II) experience with the areas of 

11 law the Constitutional Advocate is 

12 likely to encounter in the course of 

13 the Advocate’s duties; and 

14 (III) demonstrated commitment 

15 to civil liberties. 

16 (C) SECURITY CLEARANCE.—An individual 

17 may be appointed Constitutional Advocate with18 out regard to whether the individual possesses 

19 a security clearance on the date of the appoint20 ment. 

21 (D) TERM AND DISMISSAL.—A Constitu22 tional Advocate shall be appointed for a term of 

23 3 years and may be fired only for good cause 

24 shown, including the demonstrated inability to 

25 qualify for an adequate security clearance. 


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1 (E) REAPPOINTMENT.—There shall be no 

2 limit to the number of consecutive terms served 

3 by a Constitutional Advocate. The reappoint4 ment of a Constitutional Advocate shall be 

5 made in the same manner as appointment of a 

6 Constitutional Advocate. 

7 (F) ACTING CONSTITUTIONAL ADVO8 CATE.—If the position of Constitutional Advo9 cate is vacant, the Chief Justice may appoint 

10 an Acting Constitutional Advocate from among 

11 the qualified employees of the Office. If there 

12 are no such qualified employees, the Chief Jus13 tice may appoint an Acting Constitutional Ad14 vocate from the most recent list of candidates 

15 provided by the Privacy and Civil Liberties 

16 Oversight Board pursuant to subparagraph (B). 

17 The Acting Constitutional Advocate shall have 

18 all of the powers of a Constitutional Advocate 

19 and shall serve until a Constitutional Advocate 

20 is appointed. 

21 (3) EMPLOYEES.—The Constitutional Advocate 

22 is authorized, without regard to the civil service laws 

23 and regulations, to appoint and terminate employees 

24 of the Office. 


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1 (c) SECURITY CLEARANCES.—The appropriate de2 partments, agencies, and elements of the executive branch 

3 shall cooperate with the Office, to the extent possible 

4 under existing procedures and requirements, to expedi5 tiously provide the Constitutional Advocate and appro6 priate employees of the Office with the security clearances 

7 necessary to carry out the duties of the Constitutional Ad8 vocate. 

9 (d) DUTIES AND AUTHORITIES OF THE CONSTITU10 TIONAL ADVOCATE.— 

11 (1) IN GENERAL.—The Constitutional Advo12 cate— 

13 (A) shall review each application to the 

14 FISA Court by the Attorney General; 

15 (B) shall review each decision of the FISA 

16 Court, the petition review pool, or the FISA 

17 Court of Review issued after the date of the en18 actment of this Act and all documents and 

19 other material relevant to such decision in a 

20 complete, unredacted form; 

21 (C) may participate in a proceeding before 

22 the petition review pool if such participation is 

23 requested by a party in such a proceeding or by 

24 the petition review pool; 


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1 (D) shall consider any request from a pro2 vider who has been served with an order, certifi3 cation, or directive compelling the provider to 

4 provide assistance to the Government or to re5 lease customer information to assist that pro6 vider in a proceeding before the FISA Court or 

7 the petition review pool, including a request— 

8 (i) to oppose the Government on be9 half of the private party in such a pro10 ceeding; or 

11 (ii) to provide guidance to the private 

12 party if the private party is considering 

13 compliance with an order of the FISA 

14 Court; 

15 (E) shall participate in a proceeding before 

16 the FISA Court if appointed to participate by 

17 the FISA Court under section 4(a) and may 

18 participate in a proceeding before the petition 

19 review pool if authorized under section 5(a); 

20 (F) may request to participate in a pro21 ceeding before the FISA Court or the petition 

22 review pool; 

23 (G) shall participate in such a proceeding 

24 if such request is granted; 


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1 (H) may request reconsideration of a deci2 sion of the FISA Court under section 4(b); 

3 (I) may appeal or seek review of a decision 

4 of the FISA Court, the petition review pool, or 

5 the FISA Court of Review, as permitted by this 

6 title; and 

7 (J) shall participate in such appeal or re8 view. 

9 (2) ADVOCACY.—The Constitutional Advocate 

10 shall protect individual rights by vigorously advo11 cating before the FISA Court, the petition review 

12 pool, or the FISA Court of Review, as appropriate, 

13 in support of legal interpretations that minimize the 

14 scope of surveillance and the extent of data collec15 tion and retention. 

16 (3) UTILIZATION OF OUTSIDE COUNSEL.—The 

17 Constitutional Advocate— 

18 (A) may delegate to a competent outside 

19 counsel any duty or responsibility of the Con20 stitutional Advocate with respect to participa21 tion in a matter before the FISA Court, the 

22 FISA Court of Review, or the Supreme Court 

23 of the United 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), (H), or (I) of paragraph (1). 

4 (4) AVAILABILITY OF DOCUMENTS AND MATE5 RIAL.—The FISA Court, the petition review pool, or 

6 the FISA Court of Review, as appropriate, shall 

7 order any agency, department, or entity to make 

8 available to the Constitutional Advocate, or appro9 priate outside counsel if utilized by the Constitu10 tional Advocate under paragraph (3), any documents 

11 or other material necessary to carry out the duties 

12 described in paragraph (1). 

13 SEC. 4. ADVOCACY BEFORE THE FISA COURT. 

14 (a) APPOINTMENT TO PARTICIPATE.— 

15 (1) IN GENERAL.—The FISA Court may ap16 point the Constitutional Advocate to participate in a 

17 FISA Court proceeding. 

18 (2) STANDING.—If the Constitutional Advocate 

19 is appointed to participate in a FISA Court pro20 ceeding pursuant to paragraph (1), the Constitu21 tional Advocate shall have standing as a party before 

22 the FISA Court in that proceeding. 

23 (b) RECONSIDERATION OF A FISA COURT DECI24 SION.— 


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1 (1) AUTHORITY TO MOVE FOR RECONSIDER2 ATION.—The Constitutional Advocate may move the 

3 FISA Court to reconsider any decision of the FISA 

4 Court made after the date of the enactment of this 

5 Act by petitioning the FISA Court not later than 30 

6 days after the date on which all documents and ma7 terials relevant to the decision are made available to 

8 the Constitutional Advocate. 

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

10 FISA Court shall have discretion to grant or deny 

11 a motion for reconsideration made pursuant to para12 graph (1). 

13 (c) AMICUS CURIAE PARTICIPATION.— 

14 (1) MOTION BY THE CONSTITUTIONAL ADVO15 CATE.—The Constitutional Advocate may file a mo16 tion with the FISA Court to permit and facilitate 

17 participation of amicus curiae, including participa18 tion in oral argument if appropriate, in any pro19 ceeding. The FISA Court shall have the discretion 

20 to grant or deny such a motion. 

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

22 FISA Court may, sua sponte, permit and facilitate 

23 participation by amicus curiae, including participa24 tion in oral argument if appropriate, in proceedings 

25 before the FISA Court. 


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

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

3 FISA Court shall promulgate rules to provide the 

4 public with information sufficient to allow interested 

5 parties to participate as amicus curiae. 

6 SEC. 5. ADVOCACY BEFORE THE PETITION REVIEW POOL. 

7 (a) AUTHORITY TO PARTICIPATE.—The petition re8 view pool or any party to a proceeding before the petition 

9 review pool may authorize the Constitutional Advocate to 

10 participate in a petition review pool proceeding. 

11 (b) RECONSIDERATION OF A PETITION REVIEW

12 POOL DECISION.— 

13 (1) AUTHORITY TO MOVE FOR RECONSIDER14 ATION.—The Constitutional Advocate may move the 

15 petition review pool to reconsider any decision of the 

16 petition review pool made after the date of the en17 actment of this Act by petitioning the petition review 

18 pool not later than 30 days after the date on which 

19 all documents and materials relevant to the decision 

20 are made available to the Constitutional Advocate. 

21 (2) DISCRETION OF THE PETITION REVIEW

22 POOL.—The petition review pool shall have discre23 tion to grant or deny a motion for reconsideration 

24 made pursuant to paragraph (1). 

25 (c) AMICUS CURIAE PARTICIPATION.— 


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1 (1) MOTION BY THE CONSTITUTIONAL ADVO2 CATE.—The Constitutional Advocate may file a mo3 tion with the petition review pool to permit and fa4 cilitate participation of amicus curiae, including par5 ticipation in oral argument if appropriate, in any 

6 proceeding. The petition review pool shall have the 

7 discretion to grant or deny such a motion. 

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

9 petition review pool may, sua sponte, permit and fa10 cilitate participation by amicus curiae, including par11 ticipation in oral argument if appropriate, in pro12 ceedings before the petition review pool. 

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

14 after the date of the enactment of this Act, the peti15 tion review pool shall promulgate rules to provide 

16 the public with information sufficient to allow inter17 ested parties to participate as amicus curiae. 

18 SEC. 6. APPELLATE REVIEW. 

19 (a) APPEAL OF FISA COURT DECISIONS.— 

20 (1) AUTHORITY TO APPEAL.—The Constitu21 tional Advocate may appeal any decision of the 

22 FISA Court or the petition review pool issued after 

23 the date of the enactment of this Act not later than 

24 90 days after the date the decision is issued, unless 

25 it would be apparent to all reasonable jurists that 


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1 such decision is dictated by statute or by precedent 

2 handed down after such date of enactment. 

3 (2) STANDING AS APPELLANT.—If the Con4 stitutional Advocate appeals a decision of the FISA 

5 Court or the petition review pool pursuant to para6 graph (1), the Constitutional Advocate shall have 

7 standing as a party before the FISA Court of Re8 view in such appeal. 

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

10 Review shall review any FISA Court or petition re11 view pool decision appealed by the Constitutional 

12 Advocate and issue a decision in such appeal. 

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

14 a mandatory review of a FISA Court or petition re15 view pool decision pursuant to paragraph (3) shall 

16 be— 

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

18 and 

19 (B) clearly erroneous with respect to deter20 mination of facts. 

21 (5) AMICUS CURIAE PARTICIPATION.— 

22 (A) IN GENERAL.—The FISA Court of Re23 view shall accept amicus curiae briefs from in24 terested parties in all mandatory reviews pursu25 ant to paragraph (3) and shall provide for amiVerDate Mar 15 2010 23:24 Oct 02, 2013 Jkt 039200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H3228.IH H3228

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1 cus curiae participation in oral argument if ap2 propriate. 

3 (B) REGULATIONS.—Not later than 180 

4 days after the date of the enactment of this 

5 Act, the FISA Court of Review shall promul6 gate rules to provide the public with informa7 tion sufficient to allow interested parties to par8 ticipate as amicus curiae. 

9 (b) REVIEW OF FISA COURT OF REVIEW DECI10 SIONS.— 

11 (1) AUTHORITY.—The Constitutional Advocate 

12 may seek a writ of certiorari from the Supreme 

13 Court of the United States for review of any decision 

14 of the FISA Court of Review. 

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

16 Supreme Court of the United States relating to a 

17 petition of certiorari filed under paragraph (1) and 

18 any proceedings in a matter for which certiorari is 

19 granted, the Constitutional Advocate shall have 

20 standing as a party. 

21 SEC. 7. DISCLOSURE. 

22 (a) REQUIREMENT TO DISCLOSE.—The Attorney 

23 General shall publicly disclose— 

24 (1) all decisions issued by the FISA Court, the 

25 petition review pool, or the FISA Court of Review 


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1 after July 10, 2003, that include a significant con2 struction or interpretation of law; 

3 (2) any decision of the FISA Court or the peti4 tion review pool appealed by the Constitutional Ad5 vocate pursuant to this title; and 

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

7 issued after an appeal by the Constitutional Advo8 cate. 

9 (b) DISCLOSURE DESCRIBED.—For each disclosure 

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

11 Attorney General shall make available to the public docu12 ments sufficient— 

13 (1) to identify with particularity each legal 

14 question addressed by the decision and how such 

15 question was resolved; 

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

17 which the matter arises; 

18 (3) to describe the construction or interpreta19 tion of any statute, constitutional provision, or other 

20 legal authority relied on by the decision; and 

21 (4) to indicate whether the decision departed 

22 from any prior decision of the FISA Court, the peti23 tion review pool, or the FISA Court of Review. 


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1 (c) DOCUMENTS DESCRIBED.—The Attorney General 

2 shall satisfy the disclosure requirements in subsection (b) 

3 by— 

4 (1) releasing a FISA Court, petition review 

5 pool, or FISA Court of Review decision in its en6 tirety or as redacted; 

7 (2) releasing a summary of a FISA Court, peti8 tion review pool, or FISA Court of Review decision; 

9 or 

10 (3) releasing an application made to the FISA 

11 Court, a petition made to the petition review pool, 

12 briefs filed before the FISA Court, the petition re13 view pool, or the FISA Court of Review, or other 

14 materials, in full or as redacted. 

15 (d) EXTENSIVE DISCLOSURE.—The Attorney Gen16 eral shall release as much information regarding the facts 

17 and analysis contained in a decision described in sub18 section (a) or documents described in subsection (c) as is 

19 consistent with legitimate national security concerns. 

20 (e) TIMING OF DISCLOSURE.— 

21 (1) DECISIONS ISSUED PRIOR TO ENACT22 MENT.—A decision issued prior to the date of the 

23 enactment of this Act that is required to be disclosed 

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


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1 than 180 days after the date of the enactment of 

2 this Act. 

3 (2) FISA COURT AND PETITION REVIEW POOL

4 DECISIONS.—The Attorney General shall release 

5 FISA Court or petition review pool decisions ap6 pealed by the Constitutional Advocate not later than 

7 30 days after the date the appeal is filed. 

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

9 Attorney General shall release FISA Court of Re10 view decisions appealed by the Constitutional Advo11 cate not later than 90 days after the date the appeal 

12 is filed. 

13 (f) PETITION BY THE CONSTITUTIONAL ADVO14 CATE.— 

15 (1) AUTHORITY TO PETITION.—The Constitu16 tional Advocate may petition the FISA Court, the 

17 petition review pool, or the FISA Court of Review to 

18 order— 

19 (A) the public disclosure of a decision of 

20 such a Court or review pool, and documents or 

21 other material relevant to such a decision, pre22 viously designated as classified information; or 

23 (B) the release of an unclassified summary 

24 of such decisions and documents. 


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1 (2) CONTENTS OF PETITION.—Each petition 

2 filed under paragraph (1) shall contain a detailed 

3 declassification proposal or a summary of the deci4 sion and documents that the Constitutional Advocate 

5 proposes to have released publicly. 

6 (3) ROLE OF THE ATTORNEY GENERAL.— 

7 (A) COPY OF PETITION.—The Constitu8 tional Advocate shall provide to the Attorney 

9 General a copy of each petition filed under 

10 paragraph (1). 

11 (B) OPPOSITION.—The Attorney General 

12 may oppose a petition filed under paragraph (1) 

13 by submitting any objections in writing to the 

14 FISA Court, the petition review pool, or the 

15 FISA Court of Review, as appropriate, not later 

16 than 90 days after the date such petition was 

17 submitted. 

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

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

20 and taking into account any objections from the At21 torney General made under paragraph (3)(B), the 

22 FISA Court, the petition review pool, or the FISA 

23 Court of Review, as appropriate, shall declassify and 

24 make readily available to the public any decision, 

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1 tion, to the greatest extent possible, consistent with 

2 legitimate national security considerations. 

3 (5) EFFECTIVE DATE.—The Constitutional Ad4 vocate may not file a petition under paragraph (1) 

5 until 181 days after the date of the enactment of 

6 this Act, except with respect to a decision appealed 

7 by the Constitutional Advocate. 

8 SEC. 8. ANNUAL REPORT TO CONGRESS. 

9 (a) REQUIREMENT FOR ANNUAL REPORT.—The 

10 Constitutional Advocate shall submit to Congress an an11 nual report on the implementation of this title. 

12 (b) CONTENTS.—Each annual report submitted 

13 under subsection (a) shall— 

14 (1) detail the activities of the Office; 

15 (2) provide an assessment of the effectiveness 

16 of this title; and 

17 (3) propose any new legislation to improve the 

18 functioning of the Office or the operation of the 

19 FISA Court, the petition review pool, or the FISA 

20 Court of Review. 

21 SEC. 9. PRESERVATION OF RIGHTS. 

22 Nothing in this title shall be construed— 

23 (1) to provide the Attorney General with au24 thority to prevent the FISA Court, the petition re25 view pool, or the FISA Court of Review from declasVerDate Mar 15 2010 23:24 Oct 02, 2013 Jkt 039200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\H3228.IH H3228

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1 sifying decisions or releasing information pursuant 

2 to this title; and 

3 (2) to eliminate the public’s ability to secure in4 formation under section 552 of title 5, United States 

5 Code (commonly known as the ‘‘Freedom of Infor6 mation Act’’) or any other provision of law. 

Æ 


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