S. 1460 — Introduced in Senate

II 113th CONGRESS 1st Session S. 1460 IN THE SENATE OF THE UNITED STATES August 1, 2013 Mr. Blumenthal (for himself, Mr. Wyden, Mr. Udall of New Mexico, Mr. Tester, Ms. Baldwin, Mr. Heinrich, Mr. Schatz, Mr. Durbin, and Mr. Merkley) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To create two additional judge positions on the court established by the Foreign Intelligence Surveillance Act of 1978 and modify the procedures for the appointment of judges to that court, and for other purposes. 1. Short title This Act may be cited as the FISA Judge Selection Reform Act of 2013. 2. Definitions In this Act: (1) FISA Court The term FISA Court means the court established under section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)). (2) FISA Court of Review The term FISA Court of Review means the court of review established under section 103(b) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(b)). 3. Reforms to the Foreign Intelligence Surveillance Court (a) FISA Court judges (1) Number and designation of judges Section 103(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)(1)) is amended to read as follows: (1) (A) There is a court (referred to in this paragraph as the FISA Court) which shall have jurisdiction to hear applications for and to grant orders approving electronic surveillance anywhere within the United States under the procedures set forth in this Act. (B) (i) The FISA Court shall consist of 13 judges, one of whom shall be designated from each judicial circuit (including the United States Court of Appeals for the District of Columbia and the United States Court of Appeals for the Federal Circuit). (ii) The Chief Justice of the United States shall— (I) designate each judge of the FISA Court from the nominations made under subparagraph (C); and (II) make the name of each judge of the FISA Court available to the public. (C) (i) When a vacancy occurs in the position of a judge of FISA Court from a judicial circuit, the chief judge of the circuit shall propose a district judge for a judicial district within the judicial circuit to be designated for that position. (ii) If the Chief Justice does not designate a district judge proposed under clause (i), the chief judge shall propose 2 other district judges for a judicial district within the judicial circuit to be designated for that position and the Chief Justice shall designate 1 such district judge to that position. (D) No judge of the FISA Court (except when sitting en banc under paragraph (2)) shall hear the same application for electronic surveillance under this Act which has been denied previously by another judge of the FISA Court. (E) If any judge of the FISA Court denies an application for an order authorizing electronic surveillance under this Act, such judge shall provide immediately for the record a written statement of each reason for the judge's decision and, on motion of the United States, the record shall be transmitted, under seal, to the court of review established in subsection (b). . (2) Tenure Section 103(d) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(b)) is amended by striking redesignation, and all that follows through the end and inserting redesignation.. (3) Implementation (A) Incumbents A district judge designated to serve on the court established under section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) before the date of enactment of this Act may continue to serve in that position until the end of the term of the district judge under section 103(d) of such Act, as in effect on the day before the date of enactment of this Act. (B) Initial appointment and term Notwithstanding any provision of section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803), as amended by paragraphs (1) and (2), and not later than 180 days after the date of enactment of this Act, the Chief Justice of the United States shall— (i) designate a district court judge who is serving in a judicial district within the District of Columbia circuit and proposed by the chief judge of such circuit to be a judge of the FISA Court for an initial term of 7 years; and (ii) designate a district court judge who is serving in a judicial district within the Federal circuit and proposed by the chief judge of such circuit to be a judge of the FISA Court for an initial term of 4 years. (b) Court of Review Section 103(b) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(b)) is amended— (1) by striking The Chief Justice and inserting (1) Subject to paragraph (2), the Chief Justice; and (2) by adding at the end the following: (2) The Chief Justice may designate a district court judge or circuit court judge to a position on the court established under paragraph (1) only if at least 5 associate justices approve the designation of such individual. . 4. Study and report on diversity and representation on the FISA Courts (a) Study The Committee on Intercircuit Assignments of the Judicial Conference of the United States shall carry out a study on how to ensure judges are appointed to the FISA Court and the FISA Court of Review in a manner that ensures such Courts are diverse and representative. (b) Report Not later than 1 year after the date of the enactment of this Act, the Committee on Intercircuit Assignments shall submit to Congress a report on the study carried out under subsection (a).