	Introduction

Recent disclosures of various National Security Agency (NSA) surveillance and data collection programs have prompted increased attention on the government's collection of foreign intelligence. Pursuant to the Foreign Intelligence Surveillance Act (FISA) of 1978, the Foreign Intelligence Surveillance Court (FISC) reviews government applications to conduct electronic surveillance for foreign intelligence purposes and the Foreign Intelligence Surveillance Court of Review (FISA Court of Review) reviews decisions of the FISC. Due to concerns about the size and scope of the foreign intelligence collection programs authorized by orders of the FISC, many have suggested substantive changes to the underlying legal authorities relied on by the government to collect foreign intelligence, while others have proposed altering the practices and procedures of the FISA Courts. Third, the report will consider measures designed to displace the authority to designate judges to the FISA Court. Finally, the last section discusses the legal implications of proposals that would require the executive branch to release FISA Court opinions. A Brief Overview of the FISA Courts

The FISC is an Article III court composed of 11 district court judges selected by the Chief Justice of the Supreme Court from at least seven of the regional judicial circuits. First, an advocate would oppose the government's request for FISA orders on behalf of the privacy and civil liberties interests of the public. A permanently constituted advocate seeking injunctive relief based on a violation of law in the interest of the general public might be viewed as engaging in a government function; while a private party appointed temporarily to litigate on behalf of the public might not be considered an arm of the government. Assuming a public advocate is an officer, the next question would be whether an advocate is a principal or inferior officer, because principal officers must be appointed by the President with the Senate's confirmation. For example, the constitutional requirement of a case or controversy prevents a party, including the government, from litigating against itself. Housing the Advocate in the Judicial Branch

In contrast to proposals placing a public advocate in the executive branch, other measures would house the public advocate within the judiciary. Granting a judicial agency power to exercise typical executive branch functions—such as seeking relief in aid of the United States' legal interests—might run afoul of these restrictions. While there does not appear to be a constitutional issue with permitting the FISC to appoint amici who would provide views on civil liberties to the court, several proposals require the FISA Courts to appoint an amicus curiae , possibly implicating constitutional concerns. One might argue that this forces the judiciary to rule in a matter outside of a true case or controversy. Legislation requiring a federal court to sit en banc in specific situations does not appear to raise major constitutional questions. Selection of FISA Court Judges

Aside from altering the procedures of the FISA Courts, some have suggested modifying how its judges are chosen. These proposals appear to raise several novel legal issues. However, extending similar designating authority to the President or to a lower federal court over a court it does not oversee has never been resolved as a constitutional matter. However, proposals that vest the designation authority in Congress may raise a separate constitutional question. Disclosure of FISA Court Opinions

Several other FISA proposals seek to reduce the secretive nature of the FISA Courts by requiring the public disclosure of FISA opinions. Consequently, proposals that allow the executive branch to first redact classified information from FISA opinions before public release appear to be on firm constitutional ground; while a proposal that mandated all past FISA opinions be released in their entirety—without any redactions by the executive branch—might raise a separation of powers issue.
In the wake of recent disclosures concerning various National Security Agency (NSA) surveillance and data collection programs, several legislative changes to the government's intelligence operations authority have been suggested. Under the Foreign Intelligence Surveillance Act of 1978 (FISA), the Foreign Intelligence Surveillance Court (FISC) reviews government applications to conduct surveillance and engage in data collection for foreign intelligence purposes, and the FISA Court of Review reviews rulings of the FISC. Some have proposed altering the underlying legal authorities relied on by the government when applying to the FISC, while others have suggested changes to the practices and procedures of the FISA Courts. This report provides a brief overview of the legal implications of the latter group of proposals.
Some have proposed establishing an office led by a "public advocate" who would represent the civil liberties interests of the general public and oppose the government's applications for foreign surveillance. This proposal raises several constitutional issues. For example, assuming the advocate is an agent of the government, depending on the scope of the authority provided and the amount of supervision placed over the FISA advocate's office, the lawyer who leads such an office may be a principal or inferior officer of the United States whose appointment must abide by the Appointments Clause's restrictions. Moreover, an advocate might not satisfy Article III of the Constitution's requirements for parties seeking relief. In contrast, proposals that would allow an advocate to generally share its views of the law as a friend of the court or amicus curiae are far less likely to run afoul of the Constitution's restrictions. In addition, Article III generally prevents the government from litigating against itself, making it potentially constitutionally problematic to have an intra-branch dispute over foreign surveillance resolved by a federal court. Likewise, Article III might be an impediment to efforts to make appeals of FISA Court decisions more frequent. In addition, one might argue that allowing a public advocate protected by "for cause" removal restrictions to seek judicial relief on an issue of national security could invade core executive branch prerogatives. Proposals to house an advocate in the judicial branch might implicate the separation of powers principle that no branch may aggrandize itself at the expense of a co-equal branch.
Another proposal seeks to increase the amount of judicial review given to FISA applications by requiring that the FISC sit en banc. This does not appear to raise major constitutional questions as such a proposal would likely not hinder the FISC from performing its core constitutional functions. There have also been calls to alter the voting rules of the FISA Courts, although the legal implications of such proposals are less clear.
Aside from altering the procedures of the FISA Courts, other proposals focus on how judges are chosen. Some have suggested permitting the chief judges of the circuit courts, the President with Senate confirmation, or the congressional leadership to designate judges to the FISA Courts. Due to the novelty of these proposals, the legal implications of extending delegation authority to the President or lower federal courts are unclear. However, proposals that allow congressional leadership to appoint FISA Court judges are likely to raise constitutional questions.
Finally, because most FISA opinions are classified by the executive branch, some have raised concerns that this practice permits the government to rely upon "secret law" to justify its activities, and have proposed requiring the public release of FISA opinions. Proposals that allow the executive branch to first redact classified information from FISA opinions before public release appear to be on firm constitutional ground, while a proposal that mandated all past FISA opinions be released in their entirety—without any redactions by the executive branch—might raise a separation of powers issue.