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 consider-
ation 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. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘FISA Court Reform 
Act of 2013’’. 
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SEC. 2. DEFINITIONS. 
In this title: 
(1) CONSTITUTIONAL
ADVOCATE.—The term 
‘‘Constitutional Advocate’’ means the Constitutional 
Advocate appointed under section 3(b). 
(2) DECISION.—The term ‘‘decision’’ means a 
decision, order, or opinion issued by the FISA Court 
or the FISA Court of Review. 
(3) FISA.—The term ‘‘FISA’’ means the For-
eign Intelligence Surveillance Act of 1978 (50 
U.S.C. 1801 et seq.). 
(4) FISA COURT.—The term ‘‘FISA Court’’ 
means the court established under section 103(a) of 
FISA (50 U.S.C. 1803(a)). 
(5) FISA 
COURT
OF
REVIEW.—The term 
‘‘FISA Court of Review’’ means the court of review 
established under section 103(b) of FISA (50 U.S.C. 
1803(b)). 
(6) OFFICE.—The term ‘‘Office’’ means the Of-
fice of the Constitutional Advocate established under 
section 3(a). 
(7) PETITION REVIEW POOL.—The term ‘‘peti-
tion review pool’’ means the petition review pool es-
tablished by section 103(e) of FISA (50 U.S.C. 
1803(e)) or any member of that pool. 
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(8) SIGNIFICANT CONSTRUCTION OR INTERPRE-
TATION OF LAW.—The term ‘‘significant construc-
tion or interpretation of law’’ means a significant 
construction or interpretation of a provision, as that 
term is construed under section 601(c) of FISA (50 
U.S.C. 1871(c)). 
SEC. 3. OFFICE OF THE CONSTITUTIONAL ADVOCATE. 
(a) ESTABLISHMENT.—There is established within 
the judicial branch of the United States an Office of the 
Constitutional Advocate. 
(b) CONSTITUTIONAL ADVOCATE.— 
(1) IN GENERAL.—The head of the Office is the 
Constitutional Advocate. 
(2) APPOINTMENT AND TERM.— 
(A) APPOINTMENT.—The Chief Justice of 
the United States shall appoint the Constitu-
tional Advocate from the list of candidates sub-
mitted under subparagraph (B). 
(B) CANDIDATES.— 
(i) LIST OF CANDIDATES.—The Pri-
vacy and Civil Liberties Oversight Board 
shall submit to the Chief Justice a list of 
not less than 5 qualified candidates to 
serve as a Constitutional Advocate. 
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(ii) SELECTION OF CANDIDATES.—In 
preparing a list described in clause (i), the 
Privacy and Civil Liberties Oversight 
Board shall select candidates the Board 
believes will be zealous and effective advo-
cates in defense of civil liberties and con-
sider each potential candidate’s— 
(I) litigation and other profes-
sional experience; 
(II) experience with the areas of 
law the Constitutional Advocate is 
likely to encounter in the course of 
the Advocate’s duties; and 
(III) demonstrated commitment 
to civil liberties. 
(C) SECURITY CLEARANCE.—An individual 
may be appointed Constitutional Advocate with-
out regard to whether the individual possesses 
a security clearance on the date of the appoint-
ment. 
(D) TERM AND DISMISSAL.—A Constitu-
tional Advocate shall be appointed for a term of 
3 years and may be fired only for good cause 
shown, including the demonstrated inability to 
qualify for an adequate security clearance. 
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(E) REAPPOINTMENT.—There shall be no 
limit to the number of consecutive terms served 
by a Constitutional Advocate. The reappoint-
ment of a Constitutional Advocate shall be 
made in the same manner as appointment of a 
Constitutional Advocate. 
(F) 
ACTING
CONSTITUTIONAL
ADVO-
CATE.—If the position of Constitutional Advo-
cate is vacant, the Chief Justice may appoint 
an Acting Constitutional Advocate from among 
the qualified employees of the Office. If there 
are no such qualified employees, the Chief Jus-
tice may appoint an Acting Constitutional Ad-
vocate from the most recent list of candidates 
provided by the Privacy and Civil Liberties 
Oversight Board pursuant to subparagraph (B). 
The Acting Constitutional Advocate shall have 
all of the powers of a Constitutional Advocate 
and shall serve until a Constitutional Advocate 
is appointed. 
(3) EMPLOYEES.—The Constitutional Advocate 
is authorized, without regard to the civil service laws 
and regulations, to appoint and terminate employees 
of the Office. 
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(c) SECURITY CLEARANCES.—The appropriate de-
partments, agencies, and elements of the executive branch 
shall cooperate with the Office, to the extent possible 
under existing procedures and requirements, to expedi-
tiously provide the Constitutional Advocate and appro-
priate employees of the Office with the security clearances 
necessary to carry out the duties of the Constitutional Ad-
vocate. 
(d) DUTIES AND AUTHORITIES OF THE CONSTITU-
TIONAL ADVOCATE.— 
(1) IN
GENERAL.—The Constitutional Advo-
cate— 
(A) shall review each application to the 
FISA Court by the Attorney General; 
(B) shall review each decision of the FISA 
Court, the petition review pool, or the FISA 
Court of Review issued after the date of the en-
actment of this Act and all documents and 
other material relevant to such decision in a 
complete, unredacted form; 
(C) may participate in a proceeding before 
the petition review pool if such participation is 
requested by a party in such a proceeding or by 
the petition review pool; 
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(D) shall consider any request from a pro-
vider who has been served with an order, certifi-
cation, or directive compelling the provider to 
provide assistance to the Government or to re-
lease customer information to assist that pro-
vider in a proceeding before the FISA Court or 
the petition review pool, including a request— 
(i) to oppose the Government on be-
half of the private party in such a pro-
ceeding; or 
(ii) to provide guidance to the private 
party if the private party is considering 
compliance with an order of the FISA 
Court; 
(E) shall participate in a proceeding before 
the FISA Court if appointed to participate by 
the FISA Court under section 4(a) and may 
participate in a proceeding before the petition 
review pool if authorized under section 5(a); 
(F) may request to participate in a pro-
ceeding before the FISA Court or the petition 
review pool; 
(G) shall participate in such a proceeding 
if such request is granted; 
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(H) may request reconsideration of a deci-
sion of the FISA Court under section 4(b); 
(I) may appeal or seek review of a decision 
of the FISA Court, the petition review pool, or 
the FISA Court of Review, as permitted by this 
title; and 
(J) shall participate in such appeal or re-
view. 
(2) ADVOCACY.—The Constitutional Advocate 
shall protect individual rights by vigorously advo-
cating before the FISA Court, the petition review 
pool, or the FISA Court of Review, as appropriate, 
in support of legal interpretations that minimize the 
scope of surveillance and the extent of data collec-
tion and retention. 
(3) UTILIZATION OF OUTSIDE COUNSEL.—The 
Constitutional Advocate— 
(A) may delegate to a competent outside 
counsel any duty or responsibility of the Con-
stitutional Advocate with respect to participa-
tion in a matter before the FISA Court, the 
FISA Court of Review, or the Supreme Court 
of the United States; and 
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(B) may not delegate to outside counsel 
any duty or authority set out in subparagraph 
(A), (B), (D), (F), (H), or (I) of paragraph (1). 
(4) AVAILABILITY OF DOCUMENTS AND MATE-
RIAL.—The FISA Court, the petition review pool, or 
the FISA Court of Review, as appropriate, shall 
order any agency, department, or entity to make 
available to the Constitutional Advocate, or appro-
priate outside counsel if utilized by the Constitu-
tional Advocate under paragraph (3), any documents 
or other material necessary to carry out the duties 
described in paragraph (1). 
SEC. 4. ADVOCACY BEFORE THE FISA COURT. 
(a) APPOINTMENT TO PARTICIPATE.— 
(1) IN GENERAL.—The FISA Court may ap-
point the Constitutional Advocate to participate in a 
FISA Court proceeding. 
(2) STANDING.—If the Constitutional Advocate 
is appointed to participate in a FISA Court pro-
ceeding pursuant to paragraph (1), the Constitu-
tional Advocate shall have standing as a party before 
the FISA Court in that proceeding. 
(b) RECONSIDERATION OF A FISA COURT DECI-
SION.— 
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(1) AUTHORITY
TO
MOVE
FOR
RECONSIDER-
ATION.—The Constitutional Advocate may move the 
FISA Court to reconsider any decision of the FISA 
Court made after the date of the enactment of this 
Act by petitioning the FISA Court not later than 30 
days after the date on which all documents and ma-
terials relevant to the decision are made available to 
the Constitutional Advocate. 
(2) DISCRETION
OF
THE
FISA
COURT.—The 
FISA Court shall have discretion to grant or deny 
a motion for reconsideration made pursuant to para-
graph (1). 
(c) AMICUS CURIAE PARTICIPATION.— 
(1) MOTION BY THE CONSTITUTIONAL ADVO-
CATE.—The Constitutional Advocate may file a mo-
tion with the FISA Court to permit and facilitate 
participation of amicus curiae, including participa-
tion in oral argument if appropriate, in any pro-
ceeding. The FISA Court shall have the discretion 
to grant or deny such a motion. 
(2) FACILITATION BY THE FISA COURT.—The 
FISA Court may, sua sponte, permit and facilitate 
participation by amicus curiae, including participa-
tion in oral argument if appropriate, in proceedings 
before the FISA Court. 
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(3) REGULATIONS.—Not later than 180 days 
after the date of the enactment of this Act, the 
FISA Court shall promulgate rules to provide the 
public with information sufficient to allow interested 
parties to participate as amicus curiae. 
SEC. 5. ADVOCACY BEFORE THE PETITION REVIEW POOL. 
(a) AUTHORITY TO PARTICIPATE.—The petition re-
view pool or any party to a proceeding before the petition 
review pool may authorize the Constitutional Advocate to 
participate in a petition review pool proceeding. 
(b) RECONSIDERATION
OF
A PETITION REVIEW 
POOL DECISION.— 
(1) AUTHORITY
TO
MOVE
FOR
RECONSIDER-
ATION.—The Constitutional Advocate may move the 
petition review pool to reconsider any decision of the 
petition review pool made after the date of the en-
actment of this Act by petitioning the petition review 
pool not later than 30 days after the date on which 
all documents and materials relevant to the decision 
are made available to the Constitutional Advocate. 
(2) DISCRETION
OF
THE
PETITION
REVIEW 
POOL.—The petition review pool shall have discre-
tion to grant or deny a motion for reconsideration 
made pursuant to paragraph (1). 
(c) AMICUS CURIAE PARTICIPATION.— 
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(1) MOTION BY THE CONSTITUTIONAL ADVO-
CATE.—The Constitutional Advocate may file a mo-
tion with the petition review pool to permit and fa-
cilitate participation of amicus curiae, including par-
ticipation in oral argument if appropriate, in any 
proceeding. The petition review pool shall have the 
discretion to grant or deny such a motion. 
(2) FACILITATION BY THE FISA COURT.—The 
petition review pool may, sua sponte, permit and fa-
cilitate participation by amicus curiae, including par-
ticipation in oral argument if appropriate, in pro-
ceedings before the petition review pool. 
(3) REGULATIONS.—Not later than 180 days 
after the date of the enactment of this Act, the peti-
tion review pool shall promulgate rules to provide 
the public with information sufficient to allow inter-
ested parties to participate as amicus curiae. 
SEC. 6. APPELLATE REVIEW. 
(a) APPEAL OF FISA COURT DECISIONS.— 
(1) AUTHORITY
TO
APPEAL.—The Constitu-
tional Advocate may appeal any decision of the 
FISA Court or the petition review pool issued after 
the date of the enactment of this Act not later than 
90 days after the date the decision is issued, unless 
it would be apparent to all reasonable jurists that 
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such decision is dictated by statute or by precedent 
handed down after such date of enactment. 
(2) STANDING
AS
APPELLANT.—If the Con-
stitutional Advocate appeals a decision of the FISA 
Court or the petition review pool pursuant to para-
graph (1), the Constitutional Advocate shall have 
standing as a party before the FISA Court of Re-
view in such appeal. 
(3) MANDATORY REVIEW.—The FISA Court of 
Review shall review any FISA Court or petition re-
view pool decision appealed by the Constitutional 
Advocate and issue a decision in such appeal. 
(4) STANDARD OF REVIEW.—The standards for 
a mandatory review of a FISA Court or petition re-
view pool decision pursuant to paragraph (3) shall 
be— 
(A) de novo with respect to issues of law; 
and 
(B) clearly erroneous with respect to deter-
mination of facts. 
(5) AMICUS CURIAE PARTICIPATION.— 
(A) IN GENERAL.—The FISA Court of Re-
view shall accept amicus curiae briefs from in-
terested parties in all mandatory reviews pursu-
ant to paragraph (3) and shall provide for ami-
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