From: The Honorable Chris Van Hollen
Sent By: benjamin.cook@mail.house.gov
Bill: H.R. 3228
Date: 10/3/2013

Dear Colleague:

While we disagree on many issues before the Congress, we have joined together to introduce this legislation to ensure that citizens have an advocate to protect their constitutional rights before the Foreign Intelligence Surveillance Court.  We believe that our intelligence agencies must have the tools necessary to help protect our national security.  We also believe these tools must be employed in a manner consistent with the fundamental principles in our Constitution to protect the civil liberties of all Americans.

The FISA Court is a body that meets in secret to review requests from the National Security Agency and other intelligence agencies to engage in various surveillance activities.  At present, the Court hears only from the advocates for engaging in surveillance activities.  This is different from other courts, where the government’s argument is balanced by an advocate for the opposing views.  We believe we must end the FISA Court’s one-sided system.  We believe that there should be an advocate to present, when applicable and appropriate, the arguments in support of individual privacy and individual liberty.  Simply put, the FISA Court should hear both sides of the argument.

The current one-sided system has resulted in the FISA Court approving the overwhelming majority of these government requests.  Clearly, as recent disclosures have made evident, this process would benefit from providing FISA judges with the opportunity to hear an adversarial point of view.  As the presiding judge of the FISA Court, U.S. District Judge Reggie B. Walton recently told the Washington Post, “The FISC is forced to rely upon the accuracy of the information that is provided to the Court.”

We ask you to join us in cosponsoring the FISA Court Reform Act (H.R. 3228), a companion version of S.1467, which was introduced by Senator Richard Blumenthal.  This legislation is also incorporated in the Intelligence Oversight and Surveillance Reform Act (S.1551), which was recently introduced by Senators Blumenthal, Paul, Udall, and Wyden.  H.R. 3228 will ensure that the information provided to the FISC is vetted and challenged by a citizens’ advocate who is tasked with the duty of protecting the civil liberties of all Americans.

This bill would create an independent Judicial Branch office, led by a Constitutional Advocate who is appointed by the Chief Justice of the Supreme Court from a nomination list provided by the Privacy and Civil Liberties Oversight Board.  This Constitutional Advocate would not work for the President, and could not be fired by any Executive Branch official.  The Constitutional Advocate will analyze every government request for increased surveillance, and will advocate before the FISC to ensure that the surveillance meets constitutional requirements.  The Constitutional Advocate will also be authorized to assist communications companies (upon request) whose records or assistance are compelled by the government.  This assistance would involve evaluating the orders, certificates, and directives and offering legal assistance if the company decides to challenge the request before the FISC petition pool of judges.

To ensure that time-sensitive and emergency requests by the government are not unduly delayed, the FISA judges will have the discretion to deny a request to appear by the Constitutional Advocate; however, the Advocate has the ability to appeal any FISA Court decision to the FISA Court of Review, which must hear and decide on every appeal by the Constitutional Advocate.  The standards of review are de novo with respect to issues of law and clearly erroneous with respect to determination of facts—providing the FISA Court of Review with significant discretion.

This legislation would also require the FISA Court to accept amicus curiae briefs from interested parties in court proceedings.  In addition, it would require the disclosure of FISA Court opinions and decisions that significantly construct or interpret the law.  These provisions will ensure a more transparent process in these consequential decisions.

We must make sure that our intelligence agencies have the authorities they need to protect the safety and security of the American people.  But those authorities must be subjected to more oversight and accountability.  Establishing a Constitutional Advocate is a common-sense first step to strengthening this important process and further protecting the privacy and civil liberties of all Americans.

If you are interesting in cosponsoring this legislation, please contact Ben Cook (benjamin.cook@mail.house.gov, x55341) in Rep. Van Hollen’s office, or Jared Dilley (jared.dilley@mail.house.gov, x52676) in Rep. Jordan’s office.

Sincerely,                                                                                Sincerely,

Chris Van Hollen                                                                    Jim Jordan

Member of Congress                                                               Member of Congress