The Senate Select Committee on Intelligence today passed by a vote of 11-4 the FISA Improvements Act, which includes a bipartisan provision authored by U.S. Senator Angus King (I-ME) and cosponsored by Senators Susan Collins (R-ME), Mark Warner (D-VA), and Barbara Mikulski (D-MD) that would require the Foreign Intelligence Surveillance Court to designate outside "Amicus Curiae" or "Friends of the Court" to provide independent perspectives and assist the court in reviewing matters that present a novel or significant interpretation of the law.
Specifically, the provision authorizes the Court to consult with independent outside experts such as a special counsel or experts on privacy and civil liberties, intelligence collection, telecommunications, and any other area that may lend legal or technical expertise to the Court. The goal of the provision is to ensure the Court has access to the expertise necessary to oversee sensitive intelligence programs and safeguard the Fourth Amendment protections guaranteed by the Constitution.
"There is no question that the United States must take steps to combat terrorism and other threats to our security, especially in a day and age when intelligence gathering is often our primary weapon to prevent it," Senator King said. "At the same time, the Constitution guarantees the protection of privacy, and consequently the struggle in recent years has become how to properly balance the two. By creating a process whereby the Foreign Intelligence Surveillance Court can turn to independent outsiders with specific expertise in areas such as privacy or telecommunications, we will take a vital step forward in ensuring the legal and technical implications of these programs are scrutinized appropriately."
"The Foreign Intelligence Surveillance Court is an important judicial check on the collection and use of foreign intelligence information that is unique among countries," said Senator Collins. "This amicus curiae will ensure that when the Court needs a second opinion on the material presented by the Executive Branch, that it has the explicit authority to secure one. This provision further strengthens the independent judicial oversight regarding requests from the Executive Branch for intelligence activities that have implications for privacy and civil liberties."
"I was proud to work with my colleagues Senators King, Collins and Mikulski to strengthen civil liberty and privacy protections and provide an extra layer of oversight to the FISC by establishing an amicus curiae to offer an independent and outside opinion on inquiries from the Executive," Senator Warner said. "We need to be able to show the American people that the NSA and others in the intelligence community can protect our national security but also provide appropriate protections for our privacy and civil liberties."
"As a United States Senator, I have two responsibilities: to protect the American people and to protect the privacy and civil liberties of American citizens as enshrined in the Constitution," Senator Mikulski said. "Our provision on the amicus curiae (or friend of the court) brings a new kind of independent and informed perspective to the FISA Court. It is also an important step towards restoring greater public trust in the robustness of the FISA Court process."
Senator King's provision passed as part of the FISA Improvements Act. The bipartisan legislation increases privacy protections and public transparency of the National Security Agency call-records program in several ways, while preserving the operational effectiveness and flexibility of this vital national security program.