Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes [January 16, 2014] [open pdf - 373KB]
"Recent disclosures concerning the size and scope of the National Security Agency's (NSA's) 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. […] 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. Some could argue that creating a higher voting threshold could pose a risk of interfering with the independence of these courts. However, changing the voting rules could also be seen as not mandating that a court reach certain conclusions and could appear to leave the ultimate decision-making authority with the FISA judges."
CRS Report for Congress, R43362