Reform of the Foreign Intelligence Surveillance Courts: A Brief Overview [March 31, 2014] [open pdf - 294KB]
"In the wake of recent disclosures concerning various National Security Agency (NSA) surveillance and data collection programs, several legislative changes to the government's 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. Some have proposed establishing an office led by a 'public advocate' who would represent the civil liberties interests of the general public and oppose the government's 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's 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's restrictions. Moreover, an advocate might not satisfy Article III of the Constitution's requirements for parties seeking relief."
CRS Report for Congress, R43451