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About The Keyvote

This amendment greatly expands the instances under which amici curiae may be appointed to present some semblance of an adversarial process in Foreign Intelligence Surveillance Court (FISC) proceedings. Obviously, it would defeat the point of a legitimate surveillance order to have the target be able to represent themselves in front of the FISC, but the Lee/Leahy amendment insists that amici with expertise in privacy and civil liberties be present to ensure a fair proceeding in their stead in a number of instances.

At their discretion, the FISC would be expected to appoint an amicus in FISA applications involving: new interpretations of law; First Amendment-protected activities; persons affiliated with political campaigns, religious organizations, or domestic new media; the use of new surveillance technologies; or other civil liberties concerns. This would greatly increase the likelihood that abuses of surveillance authorities, including both the NSA’s mass surveillance of Americans revealed by Edward Snowden and the FBI’s abuse of the same against President Trump’s campaign, would be discovered and flagged before they got out of hand.

The government would also be explicitly required to disclose all possible exculpatory evidence that may undercut the need for a surveillance order to both the FISC and the amicus. The importance of such a requirement is highlighted by both the Carter Page incident during the Trump campaign, in which information about Page being an intelligence asset was withheld from the FISC. Recent revelations that the FBI also withheld exculpatory evidence in their investigation of General Flynn, as well, further calls that the disclosure of such information be explicitly demanded.