Secret Law

By Mike Dorf

A recent NY Times story reveals that the FISA court has created a secret body of case law (in more than a dozen decisions) that gives the NSA broad powers to engage in warrantless electronic surveillance.  Much of the story focuses on the content of that body of law--as gleaned from the revelations of Edward Snowden and confidential sources.  There are legitimate worries that the FISA Court has gone farther in allowing surveillance than the existing Supreme Court precedents allow but, of course, without access to the FISA Court's rulings, it is impossible to know whether the rulings are justified.

And that points to a profound process concern.  At least since the time of Hammurabi (nearly 4,000 years ago), the very idea of legality has been associated with publicity.  From the perspective of the individual, knowledge of the law is necessary in order to conform one's conduct to the law.  Maybe that wasn't Hammurabi's purpose in inscribing his code in public, but in modern times, publicity is considered a fundamental element of legality.

Now it might be thought that the principle of publicity (or "promulgation," as it is sometimes called) is irrelevant to the present topic because laws governing privacy treat the government, not private actors, as the regulated actors.  Thus, under this line of reasoning, so long as the FISA court rulings are known to the NSA and other relevant parties within the government, they can conform their conduct to the FISA court rulings.

But that response misses another vital aspect of the publicity requirement.  In The Morality of Law (at p. 51 of the 1969 revised edition) Lon Fuller, after defending the publicity principle on general fair notice grounds, goes on to say this:

The laws should also be given adequate publication so that they may be subject to public criticism . . . . It is also plain that if the laws are not made readily available, there is no check against a disregard of them by those charged with their application and enforcement.

That second point seems even more true when, as with laws regulating matters such as government surveillance, the laws regulate the government rather than private actors.  Note as well that by "laws," Fuller had in mind not merely statutes but all manner of regulatory materials, including court decisions.

What about the objection that our law has long recognized the possibility of closed proceedings for security concerns?  True enough, but for the most part the prior practice involved the secret application of publicly known legal norms to particular circumstances--often with an opportunity for subsequent repudiation by a court proceeding in the open and with the benefit of adversary presentation of argument.  Secret proceedings have not heretofore given rise to a body of case law.  (I put to one side purely intra-executive precedent, like Office of Legal Counsel memoranda, which do constitute a kind of case law even though some of them may be confidential; different norms apply to courts making law.)

Does this mean that the FISA court's secret, parallel jurisprudence is impossible to justify?  Not necessarily.  I suppose one could imagine surveillance programs that are: 1) extremely effective at protecting the public from terrorism; and 2) so sensitive that public knowledge of the very existence of these programs would fatally undermine them (by leading their targets to stop using the forms of communication that are subject to surveillance).  But, of course, the very secrecy at issue will make it impossible to test such claims.

What, then, should be done?  At the very least, I would want to see public discussion and adjudication of "meta-questions" such as the ones I have raised here.  Presumably these issues can be discussed in Congress in authorizing the scope of FISA court jurisdiction but, given the tendency of elected officials to over-value security relative to privacy, I would want to see public consideration of the meta-questions in a forum like the Supreme Court.  Alas, that is surely not going to happen, given the lack of a plaintiff able to present a live case or controversy posing the meta-question.  To my mind, that is so much the worse for our case-or-controversy jurisprudence.