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norms altogether.6 Although previous scholarship has discussed the proper role of stare decisis in the context of “unpublished” opinions,7 which make up around eighty percent of all United States courts of appeals opinions8 (and are usually publicly available despite their name),9 this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.

I. precedent in the foreign intelligence surveillance courts

A. 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 bancreview 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

B. 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.

II. 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.

A. 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 is justified.30 In an ideal world, stare decisis would insulate valid principles of law from arbitrary and unprincipled revision without entrenching “bad” precedent against further review.31 In reality, stare decisis hinders defection from both appealing and unappealing precedent.

This cost of stare decisis is heightened in the secret law context, because the incentive to invest extra effort in writing opinions is less powerful without the promise, and constraints, of public scrutiny.32 The general principle, evidenced by the congressional testimony of Judge Kozinski of the Ninth Circuit,33 is that publication induces judges to write more thorough, carefully reasoned opinions. Secrecy deprives FISA court judges of helpful external feedback from scholars,34 the public, and Congress. Because secrecy reduces judges’ incentives and ability to make good precedent, the risk of entrenching bad precedent is unusually high in the context of the FISA courts.

Moreover, doctrinal entrenchment is particularly problematic in the FISA courts, where secrecy and institutional context indicate that outside efforts at doctrinal reform are less likely to be effective than they are with courts that publish their opinions.35 Unlike published opinions, secret opinions cannot provoke the public into lobbying for a legislative override36 or judicial overruling37—two important paths of legal reform.38 Perhaps to hedge against the risks of limited external oversight, FISA limits FISC and Court of Review judges to non-renewable, seven-year terms,39 a provision suggesting that Congress envisioned a FISA court whose membership would be responsive to shifting factual circumstances and policy priorities.40 Stare decisis, which requires judges to adhere to interpretations of law that they might otherwise reject as unjust or unpersuasive, constrains these judges’ ability to adapt to such factual and policy shifts. Consequently, doctrinal entrenchment, by undermining FISA’s statutory design and cramping efforts at reform from within, further exacerbates the costs of stare decisis in the FISA context.

B. The Inapplicability of Stare Decisis Rationales to Secret Opinions

Defenses of stare decisis usually fall into one of three categories: 1) it promotes the rule of law;41 2) it promotes the appearance of the rule of law;42 or 3) it expresses judicial deference to the legislative branch by allowing Congress to correct interpretations of law it finds faulty.43 A closer examination of each of these justifications reveals their basic inapplicability to secret opinions.

The most common and forceful justification for stare decisis is that it promotes stability in the rule of law,44 holding judges accountable to the public and keeping them from acting capriciously.45 By promising fidelity to past statements of law, stare decisis “keep[s] the law standardized so it may be knowable to all . . . .”46 It also helps to guarantee consistency in adjudication by limiting judicial discretion and ensuring that “like cases be decided alike.”47 Because stare decisis makes the law consistent and knowable, this doctrine invites public reliance on judicial pronouncements.48

But these rule of law justifications for stare decisis largely wither when deprived of the sunlight publication provides. As discussed above, lack of publicity creates an increased risk of entrenching bad precedent and reduces incentives for judges to do their most careful work,49 thereby undermining the ability of stare decisis to promote the rule of law. Though it will not necessarily act capriciously or incautiously absent public scrutiny, a court is not constrained by a public that cannot access its opinions.

To be sure, the rule of law justifications for stare decisis do not entirely disappear when applied to secret opinions: intelligence agencies do have a considerable reliance interest in FISA courts’ opinions, and stare decisis does help guarantee that like cases are decided alike. The NSA and FBI are aware of and reliant on prior dispositions of the FISA courts50 that the American public can neither know about nor rely upon. But stare decisis may not be a necessary condition for at least partially realizing that benefit. Even absent any formal stare decisis norm, courts tend to preserve significant consistency in their opinions because of the persuasive value of past decisions, awareness of the costs of disrupting established programs, and the fact that courts are repeat decision makers.51 There is no reason to suppose the FISA courts would act differently.

Stare decisis is also defended on the ground that it increases the “perceived integrity of the judicial process” by promoting the appearance of the rule of law.52 When courts cavalierly overrule their own precedent, they may reduce the public’s confidence in the view that judges are constrained by the principles of law they espouse.53 However, granting binding precedential value to secret opinions fails to promote the appearance of the rule of law, precisely because these opinions are secret. It is impossible for the public to ascertain the analytical coherence of secret opinions or the frequency with which they overrule past interpretations. As demonstrated by the public outrage at the perception that the FISA courts have created a secret body of judicial precedent,54 denying the force of stare decisis to secret opinions may promote the appearance of the rule of law better than the status quo does, by limiting the reach and legal impact of the FISA courts’ secret rulings.

Finally, courts invoke stare decisis to defer to tacit legislative assent; in other words, courts sometimes interpret legislative silence as a sign that Congress has acquiesced to standing precedent.55 Stare decisis is therefore observed most scrupulously in matters of statutory construction—since the legislature is “free to change [an] interpretation of its legislation”56—and observed most leniently in the arena of constitutional adjudication, where judicial opinions can be overturned only by courts themselves or through constitutional amendment.57

This final defense for stare decisis is severely weakened when applied to secret opinions. The legislature is not always given access to secret opinions of the FISA courts,58 and even when it is, secret opinions cannot generate the type of public pressure frequently necessary to spur legislative correction. Gag orders are sometimes issued pursuant to programs authorized by the FISA courts, further stifling public discussion and oversight by the parties most directly affected.59 Even members of Congress face significant obstacles to speaking publicly about the classified FISA court opinions that they read and might find troubling.60

Granting stare decisis value to secret opinions threatens to entrench legal precedent that has not been subjected to the many direct and indirect benefits of public scrutiny. These problems overpower the residual benefits stare decisis may provide in the context of secret opinions. Taken together, the analysis in this Comment suggests that the justifications most commonly offered in defense of stare decisis—rule of law, appearance of the rule of law, and deference to legislative authority—do not support affording binding precedential value to secret opinions of the kind sometimes issued by the FISA courts.61

Conclusion And Recommendations

Because the theoretical justifications for stare decisis depend largely on publication, the FISA courts should publish any opinion that they consider binding precedent. The courts could retain discretion over whether to publish opinions not treated as binding on future judges.62 Therefore, every precedential opinion of the Court of Review and every FISC en banc opinion should be published in redacted form. On the other hand, the need to publish the ordinary work of the FISC is not as urgent, at least not for the reasons explored in this Comment.63

In the absence of publication, the FISC judges should afford no formal deference to past interpretations—even the opinions of the Court of Review or the en bancFISC. Though this recommendation might seem surprising, it emerges from this Comment’s conclusion that granting the force of stare decisis to secret opinions is unjustified at the theoretical level.

It is possible for publication of precedential materials to be achieved simply as a matter of discretion: the executive branch may release these opinions,64 as may the authoring judge of any opinion.65 But the best option, because it limits the ability of judges and executive branch officials to make additional judgment calls about disclosure, is for Congress to demand publication of such opinions by amending FISA. Under this recommendation, the Court of Review would retain its discretion to write non-precedential or precedential opinions as the situation requires, but FISA would demand the publication of all binding precedent. One of the many proposals for FISA court reform involves a version of this requirement: Senate Bill 1467 would require the FISA courts to release any opinions containing a “significant construction or interpretation of law.”66 We endorse this proposal but would define “significant constructions” of law as those that will have the force of stare decisis.

Some will undoubtedly claim that any increase in the level of FISA court publication, even with redaction, is inconsistent with protecting national security. Another worry is that, even with publication of opinions, the necessary redactions may severely inhibit the public value of those opinions to the point that publication is pointless.67 Such predictions are difficult to assess, but if the additional public understanding created by the release of past FISA court opinions is any guide,68 the release of future opinions will likely continue to spur thoughtful commentary and enhance public understanding of the law.

This Comment has described a theoretical problem with secret precedential opinions and applied this framework to the FISA courts. We recognize that some may object to this proposal on the grounds that it fails to acknowledge pressing security needs. However, we advocate a middle path between universal publication and the status quo of near-total secrecy. We hope that publication will induce FISA court judges to write precedential opinions with the same eye to public scrutiny that they apply in carrying out their other jobs as district and circuit court judges. More broadly, we hope to have drawn much-needed attention to the problem of applying stare decisis in secret courts.

JACK BOEGLIN & JULIUS TARANTO*