Stare decisis and secret law: on precedent and publication in the Foreign Intelligence Surveillance Court.

• Author: Boeglin, Jack

In the wake of the Snowden disclosures, both Congress and the public have taken a harder look at the work of the courts created by the Foreign Intelligence Surveillance Act (FISA), focusing in particular on the "secret body of law" (1) they have created in the process of authorizing, modifying, and denying government surveillance requests. Numerous commentators have bemoaned both the FISA courts' secretive nature and the content of specific legal interpretations revealed in their leaked opinions. (2) But an overlooked yet fundamental problem with the FISA courts' work is that judge-made law can be generated only through stare decisis, (3) a doctrine that we argue is not justified when applied to secret opinions of the type the FISA courts produce. As a result, we conclude that the FISA courts should either publish all opinions that are precedential or cease writing precedential opinions at all.

This Comment joins other work in arguing that the legitimacy of stare decisis depends upon widespread publication. (4) The doctrine of stare decisis itself emerged only with the consistent and reliable publication of court opinions, (5) and legal processes that do not result in the issuance of publicly available opinions, such as settlements and arbitrations, generally lack stare decisis norms altogether. (6) Although previous scholarship has discussed the proper role of stare decisis in the context of "unpublished" opinions, (7) which make up around eighty percent of all United States courts of appeals opinions (8) (and are usually publicly available despite their name), (9) this Comment provides the first examination of the tenability of stare decisis as applied to truly secret opinions like those of the FISC. Many have noted that stare decisis typically comes with both costs and benefits. But, we argue, in the absence of publication these costs are exacerbated and the benefits are substantially reduced. Therefore, without publication, stare decisis becomes harder to justify and should be avoided when it comes to truly secret opinions of the type the FISA courts produce.

Part I provides general background on the FISA courts and examines when and how they generate binding precedent. Part II proceeds by discussing the nature of stare decisis : its central role in creating judge-made law and its costs and justifications, particularly as applied to secret opinions. We ultimately determine that FISA judges should either label an opinion as binding precedent and publish it or mark the opinion as non-precedential and retain discretion not to publish it. Part III concludes with concrete recommendations for implementing our suggestions in the FISA courts.

1. PRECEDENT IN THE FOREIGN INTELLIGENCE SURVEILLANCE COURTS

   1. The Foreign Intelligence Surveillance Court

      The Foreign Intelligence Surveillance Act, enacted in 1978, (10) sets up the Foreign Intelligence Surveillance Court (FISC), a specialized Article III court with the power to hear and grant government requests for foreign surveillance. (11) The FISC's work consists almost entirely of ex parte proceedings granting, modifying, and denying government requests for the authority to conduct surveillance or searches, or to compel the production of tangible things. (12)

      Pursuant to the statute, the FISC consists of eleven Article III district court judges, selected by the Chief Justice of the United States. (13) All applications are considered by a single judge and cannot be reheard by another judge of the FISC except when the court sits en banc. (14) FISA provides for both en banc consideration and appeals to the Foreign Intelligence Surveillance Court of Review (Court of Review). En banc review involves a panel of all eleven FISC judges and must be ordered by a majority of the FISC judges based on a determination that "(i) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or (ii) the proceeding involves a question of exceptional importance." (15) According to public records, the FISC has sat en banc only once, (16) but it is impossible to know how many sittings and opinions remain secret. The Court of Review, which consists of three district or circuit judges also designated by the Chief Justice, has issued only two public decisions. (17)

   2. Stare Decisis and the FISA Courts

      In terms of its core function, the FISC is effectively a federal district court. (18) The vast majority of its work involves a single judge's determinations of the legality of government requests to authorize surveillance or compel production. Although it is hard to be certain without more publicly available information, FISC judges likely treat their opinions as non-precedential, as is standard practice for federal district courts. (19) The relatively few public FISC opinions do cite earlier FISC opinions and principles of law, (20) but we have seen no clear evidence to suggest that the judges feel formally bound by those earlier opinions in any manner that would set them apart from other Article III district courts.

      In contrast, en banc opinions and Court of Review opinions apparently do have the force of stare decisis. With en banc rulings, this point is evident from the statute: the court may sit en banc only to "secure or maintain uniformity" or to decide a "question of exceptional importance." (21) These bases for en banc jurisdiction suggest that individual FISC judges must give stare decisis effect to any en banc panel decision that is not overturned by the Court of Review because, absent such a practice, the en banc panels would not fulfill one of their two statutory purposes: to secure or maintain uniformity.

      Court of Review opinions can be precedential, but they are not necessarily precedential. The Court of Review is an appellate court, and like other Article III appellate courts, it has the power to bind both lower courts (in this case, the FISC) and later Court of Review panels. (22) The Court of Review probably has the same discretion as federal courts of appeals to designate opinions as precedential and non-precedential; at least, no statutory provision declares otherwise. (23) The two public Court of Review opinions are published in redacted form in the Federal Reporter. (24) As with the published case of the FISC sitting en banc, these published Court of Review cases are certainly precedential. (25) We do not know the volume, if any, of secret non-precedential Court of Review opinions, or whether there are non-public Court of Review opinions that are nonetheless treated as precedential.

      As we have demonstrated in this Part, the FISA courts currently generate at least some amount of formally binding precedent that they are under no legal obligation to publish. (26) In Part II, we take up the task of determining whether the justifications for the doctrine of stare decisis support affording secret opinions of this type binding precedential force. We conclude, ultimately, that they do not.

2. STARE DECISIS AND SECRET LAW

   Judges' power to bind future judges to the reasoning and interpretations of law advanced in their opinions comes from the doctrine of stare decisis, (27) Latin for "to stand by decided matters." (28) Stare decisis can operate either horizontally, by binding other judges on the issuing court, or vertically, by binding judges at lower levels of the judicial hierarchy. (29) Stare decisis gives a panel of judges the power to make law within any jurisdiction where they have horizontal or vertical stare decisis authority, because judges in that jurisdiction will be obligated to respect precedent even when they would otherwise be inclined to reason differently.

   1. The Costs of Stare Decisis in the FISA Context

      The benefits of and justifications for stare decisis are discussed in the next Part, but it is important to establish as an initial matter that stare decisis also involves serious costs, which are exacerbated by the FISA courts' secrecy and institutional context.

      Stare decisis's most prominent cost is binding judges to interpretations of law that they find unpersuasive, raising the fundamental question of when and why such a restraint on judges' decision-making autonomy...