To require the Attorney General to disclose each decision, order, or opinion of a Foreign Intelligence Surveillance Court that includes significant legal interpretation of section 501 or 702 of the Foreign Intelligence Surveillance Act of 1978 unless such disclosure is not in the national security interest of the United States.

SA 3435. Mr. MERKLEY (for himself, Mr. Lee, Mr. Coons, Mr. Wyden, Mr.
Franken, Mrs. Shaheen, Mr. Tester, and Mr. Durbin) proposed an
amendment to the bill H.R. 5949, to extend the FISA Amendments Act of
2008 for five years; as follows:

At the appropriate place, insert the following:

SEC. _. DISCLOSURE OF DECISIONS, ORDERS, AND OPINIONS OF THE
FOREIGN INTELLIGENCE SURVEILLANCE COURT.

(a) Findings.--Congress finds the following:
(1) Secret law is inconsistent with democratic governance.
In order for the rule of law to prevail, the requirements of
the law must be publicly discoverable.
(2) The United States Court of Appeals for the Seventh
Circuit stated in 1998 that the ``idea of secret laws is
repugnant''.
(3) The open publication of laws and directives is a
defining characteristic of government of the United States.
The first Congress of the United States mandated that every
``law, order, resolution, and vote [shall] be published in at
least three of the public newspapers printed within the
United States''.
(4) The practice of withholding decisions of the Foreign
Intelligence Surveillance Court is at odds with the United
States tradition of open publication of law.
(5) The Foreign Intelligence Surveillance Court
acknowledges that such Court has issued legally significant
interpretations of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) that are not accessible to
the public.
(6) The exercise of surveillance authorities under the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.), as interpreted by secret court opinions,
potentially implicates the communications of United States
persons who are necessarily unaware of such surveillance.
(7) Section 501 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1861), as amended by section 215 of
the USA PATRIOT Act (Public Law 107-56; 115 Stat. 287),
authorizes the Federal Bureau of Investigation to require the
production of ``any tangible things'' and the extent of such
authority, as interpreted by secret court opinions, has been
concealed from the knowledge and awareness of the people of
the United States.
(8) In 2010, the Department of Justice and the Office of
the Director of National Intelligence established a process
to review and declassify opinions of the Foreign Intelligence
Surveillance Court, but more than two years later no
declassifications have been made.
(b) Sense of Congress.--It is the sense of Congress that
each decision, order, or opinion issued by the Foreign
Intelligence Surveillance Court or the Foreign Intelligence
Surveillance Court of Review that includes significant
construction or interpretation of section 501 or section 702
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1861 and 1881a) should be declassified in a manner
consistent with the protection of national security,
intelligence sources and methods, and other properly
classified and sensitive information.
(c) Requirement for Disclosures.--
(1) Section 501.--
(A) In general.--Section 501 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861) is amended by
adding at the end the following:
``(i) Disclosure of Decisions.--
``(1) Decision defined.--In this subsection, the term
`decision' means any decision, order, or opinion issued by
the Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review that includes
significant construction or interpretation of this section.
``(2) Requirement for disclosure.--Subject to paragraphs
(3) and (4), the Attorney General shall declassify and make
available to the public--
``(A) each decision that is required to be submitted to
committees of Congress under section 601(c), not later than
45 days after such opinion is issued; and
``(B) each decision issued prior to the date of the
enactment of the ____ Act that was required to be submitted
to committees of Congress under section 601(c), not later
than 180 days after such date of enactment.
``(3) Unclassified summaries.--Notwithstanding paragraph
(2) and subject to paragraph (4), if the Attorney General
makes a determination that a decision may not be declassified
and made available in a manner that protects the national
security of the United States, including methods or sources
related to national security, the Attorney General shall
release an unclassified summary of such decision.
``(4) Unclassified report.--Notwithstanding paragraphs (2)
and (3), if the Attorney General makes a determination that
any decision may not be declassified under paragraph (2) and
an unclassified summary of such decision may not be made
available under paragraph (3), the Attorney General shall
make available to the public an unclassified report on the
status of the internal deliberations and process regarding
the declassification by personnel of Executive branch of such
decisions. Such report shall include--
``(A) an estimate of the number of decisions that will be
declassified at the end of such deliberations; and
``(B) an estimate of the number of decisions that, through
a determination by the Attorney General, shall remain
classified to protect the national security of the United
States.''.
(2) Section 702.--Section 702(l) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(l)) is
amended by adding at the end the following:
``(4) Disclosure of decisions.--
``(A) Decision defined.--In this paragraph, the term
`decision' means any decision, order, or opinion issued by
the Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review that includes
significant construction or interpretation of this section.
``(B) Requirement for disclosure.--Subject to subparagraphs
(C) and (D), the Attorney General shall declassify and make
available to the public--
``(i) each decision that is required to be submitted to
committees of Congress under section 601(c), not later than
45 days after such opinion is issued; and
``(ii) each decision issued prior to the date of the
enactment of the ____ Act that was required to be submitted
to committees of

[[Page S8453]]

Congress under section 601(c), not later than 180 days after
such date of enactment.
``(C) Unclassified summaries.--Notwithstanding subparagraph
(B) and subject to subparagraph (D), if the Attorney General
makes a determination that a decision may not be declassified
and made available in a manner that protects the national
security of the United States, including methods or sources
related to national security, the Attorney General shall
release an unclassified summary of such decision.
``(D) Unclassified report.--Notwithstanding subparagraphs
(B) and (C), if the Attorney General makes a determination
that any decision may not be declassified under subparagraph
(B) and an unclassified summary of such decision may not be
made available under subparagraph (C), the Attorney General
shall make available to the public an unclassified report on
the status of the internal deliberations and process
regarding the declassification by personnel of Executive
branch of such decisions. Such report shall include--
``(i) an estimate of the number of decisions that will be
declassified at the end of such deliberations; and
``(ii) an estimate of the number of decisions that, through
a determination by the Attorney General, shall remain
classified to protect the national security of the United
States.''.
______