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Reform of the Foreign Intelligence Surveillance Courts: A Brief Overview

CRS – Reform of the Foreign Intelligence Surveillance Courts: A Brief Overview. Jared P. Cole, Legislative Attorney; Andrew Nolan, Legislative Attorney. March 31, 2014.

“Recent disclosures of various National Security Agency (NSA) surveillance and data collection programs have prompted increased attention on the government’s collection of foreign intelligence. Pursuant to the Foreign Intelligence Surveillance Act (FISA) of 1978 the Foreign Intelligence Surveillance Court (FISC) reviews government applications to conduct electronic surveillance for foreign intelligence purposes and the Foreign Intelligence Surveillance Court of Review (FISA Court of Review) reviews decisions of the FISC. Due to concerns about the size and scope of the foreign intelligence collection programs authorized by orders of the FISC, many have suggested substantive changes to the underlying legal authorities relied on by the government to collect foreign intelligence, while others have proposed altering the practices and procedures of the FISA Courts. After a short overview of the FISA judicial review process, this report will briefly analyze the latter set of proposals. First, this report examines proposals to introduce a public advocate into FISA Court proceedings, a third party who would argue against the government’s application to the FISC. Second, the report explores various other proposals that would alter the procedural and operational mechanisms of the FISA Courts, such as appointing an amicus curiae, or friend of the court, to assist the court in addressing novel legal issues. Third, the report will consider measures designed to displace the authority to designate judges to the FISA Court. Finally, the last section discusses the legal implications of proposals that would require the executive branch to release FISA Court opinions.”

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