{
  "id": "R43451",
  "type": "CRS Report",
  "typeId": "REPORTS",
  "number": "R43451",
  "active": true,
  "source": "EveryCRSReport.com",
  "versions": [
    {
      "source": "EveryCRSReport.com",
      "id": 429307,
      "date": "2014-03-31",
      "retrieved": "2016-04-06T20:32:10.118746",
      "title": "Reform of the Foreign Intelligence Surveillance Courts: A Brief Overview",
      "summary": "In the wake of recent disclosures concerning various National Security Agency (NSA) surveillance and data collection programs, several legislative changes to the government\u2019s intelligence operations authority have been suggested. Under the Foreign Intelligence Surveillance Act of 1978 (FISA), the Foreign Intelligence Surveillance Court (FISC) reviews government applications to conduct surveillance and engage in data collection for foreign intelligence purposes, and the FISA Court of Review reviews rulings of the FISC. Some have proposed altering the underlying legal authorities relied on by the government when applying to the FISC, while others have suggested changes to the practices and procedures of the FISA Courts. This report provides a brief overview of the legal implications of the latter group of proposals.\nSome have proposed establishing an office led by a \u201cpublic advocate\u201d who would represent the civil liberties interests of the general public and oppose the government\u2019s applications for foreign surveillance. This proposal raises several constitutional issues. For example, assuming the advocate is an agent of the government, depending on the scope of the authority provided and the amount of supervision placed over the FISA advocate\u2019s office, the lawyer who leads such an office may be a principal or inferior officer of the United States whose appointment must abide by the Appointments Clause\u2019s restrictions. Moreover, an advocate might not satisfy Article III of the Constitution\u2019s requirements for parties seeking relief. In contrast, proposals that would allow an advocate to generally share its views of the law as a friend of the court or amicus curiae are far less likely to run afoul of the Constitution\u2019s restrictions. In addition, Article III generally prevents the government from litigating against itself, making it potentially constitutionally problematic to have an intra-branch dispute over foreign surveillance resolved by a federal court. Likewise, Article III might be an impediment to efforts to make appeals of FISA Court decisions more frequent. In addition, one might argue that allowing a public advocate protected by \u201cfor cause\u201d removal restrictions to seek judicial relief on an issue of national security could invade core executive branch prerogatives. Proposals to house an advocate in the judicial branch might implicate the separation of powers principle that no branch may aggrandize itself at the expense of a co-equal branch. \nAnother proposal seeks to increase the amount of judicial review given to FISA applications by requiring that the FISC sit en banc. This does not appear to raise major constitutional questions as such a proposal would likely not hinder the FISC from performing its core constitutional functions. There have also been calls to alter the voting rules of the FISA Courts, although the legal implications of such proposals are less clear.\nAside from altering the procedures of the FISA Courts, other proposals focus on how judges are chosen. Some have suggested permitting the chief judges of the circuit courts, the President with Senate confirmation, or the congressional leadership to designate judges to the FISA Courts. Due to the novelty of these proposals, the legal implications of extending delegation authority to the President or lower federal courts are unclear. However, proposals that allow congressional leadership to appoint FISA Court judges are likely to raise constitutional questions.\nFinally, because most FISA opinions are classified by the executive branch, some have raised concerns that this practice permits the government to rely upon \u201csecret law\u201d to justify its activities, and have proposed requiring the public release of FISA opinions. Proposals that allow the executive branch to first redact classified information from FISA opinions before public release appear to be on firm constitutional ground, while a proposal that mandated all past FISA opinions be released in their entirety\u2014without any redactions by the executive branch\u2014might raise a separation of powers issue.",
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      "typeId": "REPORTS",
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      "topics": []
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  "topics": [
    "Constitutional Questions"
  ]
}