Among other things, FISA established the Foreign Intelligence Surveillance Court (FISC) to review government applications to conduct electronic surveillance for foreign intelligence purposes and the Foreign Intelligence Surveillance Court of Review (FISA Court of Review) to review the decisions of the FISC. While some have proposed altering the underlying substantive law that regulates such surveillance, other proposals address the practice and procedures of authorizing such surveillance activities. These reforms include requiring the FISC to hear arguments from "friends of the court" or amici curiae , who would brief the court on the privacy or civil liberty interests implicated by a government application; mandating that in certain instances the FISC sit en banc —that is, with all 11 FISC judges; and altering the voting rules of the FISC and FISA Court of Review. At the heart of FISA is the FISC, a specialized Article III court that is empowered to "hear applications for and grant orders approving" of certain foreign intelligence gathering efforts. Operations of the FISA Courts

In light of the sensitive nature of its docket, the FISA courts operate largely in secret and in a non-adversarial fashion. Congress's Power to Regulate the Practice and Procedures of Federal Courts

Several congressional proposals attempting to reform United States foreign intelligence gathering efforts are aimed at changing the underlying practices of the FISC and FISA Court of Review. For example, some have suggested either explicitly permitting or mandating that the FISC hear from an amicus curiae or "friend of the court." Still others have suggested altering the voting rules of the FISC in an apparent attempt to create a higher threshold for government surveillance. While formally codifying the FISA courts' authority in statute could arguably clarify the scope of the courts' authority with respect to amici and encourage the courts to exercise that authority more frequently, it is unclear what legal difference a codification of the amicus authority ultimately makes, as the statutory authority is largely duplicative of the authority the FISA courts already possess as a matter of their inherent power. First, it can be argued that a "mandatory amicus " proposal potentially conflicts with the constitutional norm that Article III courts, like the FISC, must have some degree of autonomy or independence in controlling their internal processes. Another provision in Title 5 of the U.S. Code authorizes the head of the Office of Special Counsel to appear as an amicus in certain cases and requires a "court of the United States [to] grant the application of the Special Counsel to appear in any such action.... " While the plain language of these two laws appear to provide a mandate on the court to hear from certain government amici, no court has assessed the constitutionality of such a provision, leaving the constitutional status of a mandatory amicus statute judicially unresolved. Congressionally mandating that the FISC sit en banc prompts questions regarding the constitutionality of such proposals. Legal Issues with Requiring an En Banc Panel for "Significant Interpretations" of FISA

There does not appear to be a major constitutional question raised by legislation requiring, as opposed to allowing, a federal court to sit en banc in certain circumstances. While Congress has significant authority to regulate the practice and procedure of the federal courts, it is unclear whether directly setting the voting rules of a federal court falls within that power.
Recent disclosures concerning the size and scope of the National Security Agency's (NSA) surveillance activities both in the United States and abroad have prompted a flurry of congressional activity aimed at reforming the foreign intelligence gathering process. While some measures would overhaul the substantive legal rules of the USA PATRIOT Act or other provisions of the Foreign Intelligence Surveillance Act (FISA), there are a host of bills designed to make procedural and operational changes to the Foreign Intelligence Surveillance Court (FISC), a specialized Article III court that hears applications and grants orders approving of certain foreign intelligence gathering activities, and the Foreign Intelligence Surveillance Court of Review, a court that reviews rulings of the FISC. This report will explore a selection of these proposals and address potential legal questions such proposals may raise.
Due to the sensitive nature of the subject matters it adjudicates, the FISC operates largely in secret and in a non-adversarial manner with the government as the only party. Some have argued that this non-adversarial process prevents the court from hearing opposing viewpoints on difficult legal issues facing the court. To address these concerns, some have suggested either permitting or mandating that the FISC hear from "friends of the court" or amici curiae, who would brief the court on potential privacy and civil liberty interests implicated by a government application. While formally codifying the FISA courts' authority in statute could arguably clarify the scope of the court's authority with respect to amici and encourage the courts to exercise that authority more frequently, it is unclear what legal difference a codification of the amicus authority ultimately makes, as the statutory authority is largely duplicative of the authority the FISA courts already possess as a matter of their inherent power. Proposals to mandate, rather than permit, that the FISC hear from an amicus might also fall within Congress's considerable power to regulate the practices and procedures of federal courts. Nonetheless, such mandatory amicus proposals are uncommon and could potentially raise constitutional issues concerning the independence of the FISC to control its internal processes. Such proposals may also prompt questions to the extent that they conflict with constitutional rules about who can appear before federal courts and what powers those individuals may wield when there.
In another attempt to promote greater judicial scrutiny of FISA applications, some have suggested that Congress mandate that the FISC sit en banc—that is, conduct review by all 11 judges of the court—when making "significant" interpretations of foreign intelligence statutes. Under current law, the FISC is permitted in certain instances to hold a hearing or rehearing en banc, mainly to ensure uniformity of FISC decisions and when addressing legal questions of exceptional importance. Requiring that the FISC sit en banc does not appear to raise major constitutional questions as such a proposal would likely not hinder the FISC from performing its core constitutional functions, which primarily includes independently adjudicating matters before it with finality.
There have also been calls to alter the voting rules of either the FISC, when sitting en banc, or the Foreign Intelligence Surveillance Court of Review apparently in an effort to create a higher threshold for government surveillance. While Congress has significant constitutional power to govern the practice and procedure of the federal courts, including the two foreign intelligence courts, it is unclear whether setting these voting rules falls within that power or, conversely, whether it may intrude upon the core judicial function of these federal tribunals.