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Explanation for the Recommendation:

Over the past decade, the FISC has generated a significant body of law interpreting FISA
authorities and other potentially applicable statutes, and analyzing related constitutional
questions. However, FISC opinions have been much less likely to be subject to appellate
review than the opinions of ordinary federal courts; to date, only two cases have been
decided by the Foreign Intelligence Surveillance Court of Review (“FISCR”). There should
be a greater opportunity for appellate review of FISC decisions by the FISCR and for review
of the FISCR’s decisions by the Supreme Court of the United States. Providing for greater
appellate review of FISC and FISCR rulings will strengthen the integrity of judicial review
under FISA. Providing a role for the Special Advocate in seeking that appellate review will
further increase public confidence in the integrity of the process.

Discussion of Status:

Section 401 of the USA FREEDOM Act expands 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.

Like the Board’s proposal, the Act authorizes the FISC, after issuing an order, to certify a
question of law to be reviewed by the FISCR. Similarly, the Act authorizes the FISCR to
certify a question of law to be reviewed by the U.S. Supreme Court. In each circumstance,
the higher court would decide whether to review the question certified by the lower court.

The USA FREEDOM Act provides fewer guarantees than the Board’s proposal that any
participating amicus curiae will be allowed to participate in the appellate review process —
both in the decision about whether to certify a question of law for review, and in the
proceedings that take place once a question has been certified. Unlike the Board’s proposal,
the Act provides no mechanism for an amicus curiae to request certification of a FISC or
FISCR decision, and it provides no mechanism by which an amicus curiae can challenge the
FISC’s decision not to certify a legal question for appellate review. The Board notes that
FISC and FISCR rules of procedure could be revised to provide such mechanisms. In
addition, under the Board’s proposal, when a legal question is accepted for review by the
FISCR, the Special Advocate would be permitted to participate in the matter, just as in the
FISC. By contrast, under the USA FREEDOM Act, such participation is permitted only when
the FISCR also determines that the matter presents a novel or significant interpretation of
the law. The Act also provides that upon certification of a matter to the U.S. Supreme Court,
the Court “may appoint an amicus curiae” designated under the provisions of the Act.

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