{ "id": "R43362", "type": "CRS Report", "typeId": "REPORTS", "number": "R43362", "active": true, "source": "EveryCRSReport.com, University of North Texas Libraries Government Documents Department", "versions": [ { "source": "EveryCRSReport.com", "id": 433896, "date": "2014-08-26", "retrieved": "2016-04-06T20:09:19.044652", "title": "Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes", "summary": "Recent disclosures concerning the size and scope of the National Security Agency\u2019s (NSA) surveillance activities both in the United States and abroad have prompted a flurry of congressional activity aimed at reforming the foreign intelligence gathering process. While some measures would overhaul the substantive legal rules of the USA PATRIOT Act or other provisions of the Foreign Intelligence Surveillance Act (FISA), there are a host of bills designed to make procedural and operational changes to the Foreign Intelligence Surveillance Court (FISC), a specialized Article III court that hears applications and grants orders approving of certain foreign intelligence gathering activities, and the Foreign Intelligence Surveillance Court of Review, a court that reviews rulings of the FISC. This report will explore a selection of these proposals and address potential legal questions such proposals may raise.\nDue to the sensitive nature of the subject matters it adjudicates, the FISC operates largely in secret and in a non-adversarial manner with the government as the only party. Some have argued that this non-adversarial process prevents the court from hearing opposing viewpoints on difficult legal issues facing the court. To address these concerns, some have suggested either permitting or mandating that the FISC hear from \u201cfriends of the court\u201d or amici curiae, who would brief the court on potential privacy and civil liberty interests implicated by a government application. While formally codifying the FISA courts\u2019 authority in statute could arguably clarify the scope of the court\u2019s authority with respect to amici and encourage the courts to exercise that authority more frequently, it is unclear what legal difference a codification of the amicus authority ultimately makes, as the statutory authority is largely duplicative of the authority the FISA courts already possess as a matter of their inherent power. Proposals to mandate, rather than permit, that the FISC hear from an amicus might also fall within Congress\u2019s considerable power to regulate the practices and procedures of federal courts. Nonetheless, such mandatory amicus proposals are uncommon and could potentially raise constitutional issues concerning the independence of the FISC to control its internal processes. Such proposals may also prompt questions to the extent that they conflict with constitutional rules about who can appear before federal courts and what powers those individuals may wield when there. \nIn another attempt to promote greater judicial scrutiny of FISA applications, some have suggested that Congress mandate that the FISC sit en banc\u2014that is, conduct review by all 11 judges of the court\u2014when making \u201csignificant\u201d interpretations of foreign intelligence statutes. Under current law, the FISC is permitted in certain instances to hold a hearing or rehearing en banc, mainly to ensure uniformity of FISC decisions and when addressing legal questions of exceptional importance. Requiring that the FISC sit en banc does not appear to raise major constitutional questions as such a proposal would likely not hinder the FISC from performing its core constitutional functions, which primarily includes independently adjudicating matters before it with finality.\nThere have also been calls to alter the voting rules of either the FISC, when sitting en banc, or the Foreign Intelligence Surveillance Court of Review apparently in an effort to create a higher threshold for government surveillance. While Congress has significant constitutional power to govern the practice and procedure of the federal courts, including the two foreign intelligence courts, it is unclear whether setting these voting rules falls within that power or, conversely, whether it may intrude upon the core judicial function of these federal tribunals.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/R43362", "sha1": "9a03c5f4f8eaedc20268a5d4742c8ee52c562d8b", "filename": "files/20140826_R43362_9a03c5f4f8eaedc20268a5d4742c8ee52c562d8b.html", "images": null }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/R43362", "sha1": "9fa6b5cb0b4eca4497160a884c85ebfcac6e9a2c", "filename": "files/20140826_R43362_9fa6b5cb0b4eca4497160a884c85ebfcac6e9a2c.pdf", "images": null } ], "topics": [] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc822405/", "id": "R43362_2014Jan16", "date": "2014-01-16", "retrieved": "2016-03-19T13:57:26", "title": "Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes", "summary": "This report begins with an overview of both the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Act (FISA) Court of Review, including the jurisdiction of these courts, how the judges are appointed, and the FISC\u2019s practices and procedures for reviewing and issuing surveillance orders. The report then discusses the scope and underlying legal principles behind congressional regulation of the procedures of the federal courts, and applies those principles with respect to the various proposals to reform the FISA judicial review process.", "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20140116_R43362_76cb5feef6f7e700326db4791647f0d24a89cd75.pdf" }, { "format": "HTML", "filename": "files/20140116_R43362_76cb5feef6f7e700326db4791647f0d24a89cd75.html" } ], "topics": [ { "source": "LIV", "id": "Intelligence activities", "name": "Intelligence activities" }, { "source": "LIV", "id": "Foreign relations", "name": "Foreign relations" }, { "source": "LIV", "id": "Espionage", "name": "Espionage" }, { "source": "LIV", "id": "Drone aircraft", "name": "Drone aircraft" } ] } ], "topics": [ "Constitutional Questions" ] }