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addition to assisting the court, a mechanism allowing FISC judges to call upon independent
expert advocates for a broader range of legal views could bolster the public’s trust in its
operations and in the integrity of the FISA system overall.

Discussion of Status:

Section 401 of the USA FREEDOM Act established a process for hearing independent views
that is largely consistent with the Board’s recommendation. This provision closely mirrors
the Board’s proposal regarding “the establishment of a panel of outside lawyers to serve as
Special Advocates before the FISC in appropriate cases.” Like the Board’s proposal, the USA
FREEDOM Act authorizes the presiding judge of the FISC to appoint a panel of at least five
private sector attorneys, eligible for security clearances and with relevant professional
experience, to participate in matters that a FISC judge determines involve a novel or
significant interpretation of the law, including the application of law to new technologies.
(Alternatively, a FISC judge may issue a written finding that such appointment is not
appropriate in a given case.) Under the USA FREEDOM Act, these individuals are
designated to serve “as amicus curiae” rather than as “Special Advocates” as in the Board’s
proposal, but the legislation does provide that the amici will be tasked with making
arguments addressing privacy and civil liberties, and will have access to relevant materials,
including government applications, petitions, and motions. Unlike the Board’s proposal, the
Act does not mandate that the amici be “permitted to participate in all proceedings related
to that application or matter” or “have access to all government filings” (emphasis added).
Our report notes, however, that the FISC has the power to establish specific rules regarding
the Special Advocate’s or amici’s participation through its internal Rules of Procedure.

The FISC has begun appointing individuals to serve as amici in particular matters, and in
November 2015, the FISC designated a standing panel of five individuals to serve as amicus
curiae as required under the Act.

Recommendation 4: Expand Opportunities for Appellate Review of FISC

Decisions

Status:

Implemented (USA FREEDOM Act)
Text of the Board’s Recommendation:

Congress should enact legislation to expand the opportunities for appellate review of FISC
decisions by the FISCR and for review of FISCR decisions by the Supreme Court of the

United States.

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