Stare Decisis and Secret Law: On Precedent and Publication in the Foreign Intelligence Surveillance Court

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" 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.  But an overlooked yet fundamental problem with the FISA courts' work is that judge-made law can be generated only through stare decisis, 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.