Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes
Released: 2014-08-26T00:00:00

Introduction

The Foreign Intelligence Surveillance Act (FISA) of 1978 was the product of sweeping congressional investigation and deliberation prompted by perceived electronic surveillance abuses by the executive branch. Among other things, FISA established the Foreign Intelligence Surveillance Court (FISC) to review government applications to conduct electronic surveillance for foreign intelligence purposes and the Foreign Intelligence Surveillance Court of Review (FISA Court of Review) to review the decisions of the FISC. In the wake of revelations in June 2013 concerning the scope of orders issued by the FISC, many have questioned the efficacy of the current mechanisms for reviewing the executive branch's intelligence gathering practices. While some have proposed altering the underlying substantive law that regulates such surveillance, other proposals address the practice and procedures of authorizing such surveillance activities.

This report begins with an overview of both the FISC and the FISA Court of Review, including the jurisdiction of these courts, how the judges are appointed, and the FISC's practices and procedures for reviewing and issuing surveillance orders. The report then discusses the scope and underlying legal principles behind congressional regulation of the procedures of the federal courts, and applies those principles with respect to the various proposals to reform the FISA judicial review process. These reforms include requiring the FISC to hear arguments from "friends of the court" or amici curiae , who would brief the court on the privacy or civil liberty interests implicated by a government application; mandating that in certain instances the FISC sit en banc —that is, with all 11 FISC judges; and altering the voting rules of the FISC and FISA Court of Review.

Overview of the FISA Courts

The creation of the foreign intelligence surveillance courts came about from the confluence of two major legal and political developments in the 1970s. First, in 1972, the Supreme Court suggested in the Keith case that while domestic security surveillance must be handled through traditional legal processes, Congress could establish a special legal framework for reviewing requests for foreign intelligence surveillance. Second, in 1975, Congress created the Senate Select Committee to Study Governmental Operations With Respect to Intelligence Activities, commonly known as the "Church Committee," to review the executive branch's intelligence gathering activities. The Church Committee unearthed widespread surveillance of American citizens and recommended tighter controls on intelligence activities. Deliberating in the context of both the Keith case and the Church Committee Report, Congress enacted FISA in 1978.

At the heart of FISA is the FISC, a specialized Article III court that is empowered to "hear applications for and grant orders approving" of certain foreign intelligence gathering efforts. The FISC is wholly unique among federal courts in that its jurisdiction is narrowly tailored; the selection of its judges deviates from traditional constitutional appointments process; and its day-to-day operations are conducted almost entirely in secret. Before addressing some of the proposals to alter the current practices and procedures of the FISC and FISA Court of Review, this section will take a closer look at the current structure and operational processes of these foreign intelligence courts.

Jurisdiction of the FISA Courts

The jurisdiction of the FISC is narrow in scope in that it solely "relates to the collection of foreign intelligence by the federal government." As originally enacted, the FISC's authority was limited to hearing government applications for electronic surveillance. The court's jurisdiction was later expanded, however, to hear applications for and grant orders approving of four types of investigative methods: (1) electronic surveillance; (2) physical searches; (3) pen register/trap and trace surveillance; and (4) the use of orders compelling the production of tangible things. The FISA Court of Review has jurisdiction to "review the denial of any application" for electronic surveillance and or physical searches. Additionally, the Court of Review has jurisdiction to review "tangible things" orders appealed by either the government or a person receiving such a production order.

Under the FISA Amendments Act of 2008 (FAA), the FISC is authorized to review the government's certifications, minimization and targeting procedures concerning the targeting of non-U.S. persons reasonably believed to be abroad, and applications regarding the targeting of U.S. persons reasonably believed to be located abroad. The FISC has jurisdiction to review petitions by electronic communication service providers to modify or set aside directives issued under the FAA. The FISC can also review requests by the Attorney General to compel an electronic communication service provider to comply with a directive. The FISA Court of Review has jurisdiction to review FISC decisions to modify or set aside a directive and decisions to compel compliance with a directive.

Judges and Staff of the FISA Courts

The FISC is composed of 11 district court judges selected by the Chief Justice from at least seven of the regional judicial circuits. Of these 11, at least 3 must reside within 20 miles of the District of Columbia. Unlike judges appointed to traditional Article III courts, FISA judges are not selected via presidential appointment and Senate confirmation, but are instead "designated" to those positions by the Chief Justice of the Supreme Court. Pursuant to the FISC's rules, the presiding judge of the FISC is selected by the Chief Justice. The FISA Court of Review is composed of three district court or court of appeals judges also designated by the Chief Justice. The Chief Justice also selects the presiding judge of the Court of Review. Judges of both courts serve one term of seven years and are not eligible for a second term. In addition to the judges, the FISC has a staff of five full-time legal advisors with expertise in foreign intelligence issues. These legal advisors are said to conduct a thorough "vetting" of all applications before the government presents them formally to the FISC judges.

Operations of the FISA Courts

In light of the sensitive nature of its docket, the FISA courts operate largely in secret and in a non-adversarial fashion. Court sessions are held behind closed doors, are generally held ex parte with the government as the only party presenting arguments to the court, and rarely are its opinions released. As noted by the FISC, whereas "[o]ther courts operate primarily in public, with secrecy the exception[,] the FISC operates primarily in secret, with public access the exception." That being said, there are several instances where non-governmental parties have appeared before the FISC.

Generally, each of the 11 FISC judges sits for a one week period in a secure courtroom in a federal courthouse in Washington, DC on a rotating basis. The judge on duty each week is aptly referred to as the "duty judge." Additionally, the three FISC judges who reside in the District of Columbia, or if they are unavailable, other FISC judges as may be designated by the Chief Judge of the FISC, comprise a pool which has jurisdiction to review petitions filed under § 215 of the USA PATRIOT Act and § 702 of FISA. Applications submitted to the FISC are heard by a single judge, and if denied, cannot be heard by another judge of the FISC, except when sitting en banc .

The application process generally begins when the government submits a "read copy" of its proposed application to the FISC, which, pursuant to FISC rules, must be submitted seven days before the government files a formal application. In many instances, the legal advisors or the FISC judges will have questions about these read copies, and will often have conversations with the government's attorneys—generally, attorneys from the Office of Intelligence of the National Security Division of the Department of Justice—to seek additional information or raise concerns about the application. The legal advisors will then prepare a written memorandum for the duty judge, identifying any weaknesses or flaws in the government's submissions. The duty judge will review the memorandum and make an initial determination of how he is inclined to resolve the application. This may include a determination that the application will be approved without a hearing, that additional information is required from the government, that conditions may be placed on the application, or that a hearing is required. Based on the judge's response, the government then decides whether to submit a formal application. In some instances, the questions raised by the judges or legal advisors may result in the withdrawal or non-submission of the final application. If the judge denies a formal application, he must prepare a statement of reasons of his decision.

A hearing regarding an application can occur in several situations. The FISC judge may determine that a hearing is needed before deciding to issue an application. Alternatively, the government may request a hearing to challenge conditions that the judge has stated he would place on the approval of the application. Additionally, the FISC may, on its own initiative, or upon the request of the government in any proceeding, or a party in any proceeding under § 215 or § 702, hold a hearing or rehearing en banc . An en banc panel consists of all the judges that constitute the FISC. An en banc panel will be convened when ordered by a majority of the FISC judges upon a determination that "(i) the 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." An initial hearing, as opposed to a rehearing, will be heard en banc only if the matter "is of such immediate and extraordinary importance that initial consideration" is necessary and feasible "in light of applicable time constraints."

Upon the denial of any application for electronic surveillance or physical searches, the government may request review from the FISA Court of Review. If the court determines that the application was properly denied, it "shall immediately provide for the record a written statement of each reason for its decision." The government may then file for a writ of certiorari to have such a denial reviewed by the Supreme Court. The Court of Review also has jurisdiction to review a petition by either the government or anyone receiving an order for the production of "tangible things" to affirm, modify, or set aside a FISC order. The Court of Review must provide a written opinion of the reasons for its decision, and upon petition by the government or the entity receiving the production order transmit the record to the Supreme Court, which has jurisdiction to review such decision.

Congress's Power to Regulate the Practice and Procedures of Federal Courts

Several congressional proposals attempting to reform United States foreign intelligence gathering efforts are aimed at changing the underlying practices of the FISC and FISA Court of Review. For example, some have suggested either explicitly permitting or mandating that the FISC hear from an amicus curiae or "friend of the court." Others have proposed mandating en banc panels of the FISC. Still others have suggested altering the voting rules of the FISC in an apparent attempt to create a higher threshold for government surveillance. Before delving into the specific legal questions prompted by such proposals, however, it is important to first explore the underlying legal principles animating the extent to which Congress can regulate an Article III court's practices and procedures. The starting point for that discussion is the nature of a federal court's power, which stems from the Constitution, statutory law, and federal common law.

A federal court's power emanates first and foremost from the Constitution. Specifically, Article III of the Constitution vests the "judicial power" of the United States in the Supreme Court and any inferior courts established by Congress. Supreme Court case law has interpreted the judiciary's authority to consist of three primary elements. First, the judicial power encompasses the power to interpret laws. As stated in Federalist No. 78 and later echoed in Marbury v. Madison : "The interpretation of the law is the proper and peculiar province of the courts." Nonetheless, as the Supreme Court had noted, the judicial branch is not the only branch that interprets the law, as President must necessarily interpret laws in executing them, and Congress must necessarily engage in legal interpretation when enacting legislation. Accordingly, there is a second aspect of Article III judicial power, and it centers on when a court exercises the power to say what the law means. Specifically, a federal court exercises its authority in the context of certain "cases" or "controversies." The "cases" or "controversies" language of Article III connotes a source of authority for federal courts such that Article III courts are empowered to not "merely ... rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy ... ." Put another way, the "judicial power" of Article III entails a power to render final, "dispositive judgments" in particular cases and controversies. Third, the structural protections the Constitution provides to courts suggest another distinct aspect regarding the federal judicial power. Section one of Article III stipulates that all federal judges in "good behaviour" shall have lifetime tenure and that their salary cannot be diminished within their term of office. The purpose of these provisions is to ensure that federal courts operate free from interference from the political branches in order to, in the words of Alexander Hamilton, "secure a steady, upright, and impartial administration of the laws."

While the Constitution provides federal courts the "capacity" to exercise their power in certain cases, an act of Congress is "require[d] ... to confer" authority to a given Article III court, meaning that statutory law is another source of a federal court's power. Article I of the Constitution provides Congress with the discretion to create inferior tribunals to the Supreme Court. As a "necessary and proper" function of carrying into execution that power and the "[p]owers vested by [the] Constitution" in the judiciary, Congress can authorize the courts to "carry[] into execution all the judgments which the judicial department has the power to pronounce." In this vein, provisions codified in Title 28 of the United States Code empower the federal courts to do a host of activities, such as being able to hear disputes based on "federal questions" or assess certain fees to litigants.

In addition to the powers bestowed on federal courts through Article III and certain statutory provisions, the Supreme Court has long recognized that the federal judiciary retains certain "inherent powers" or "implied powers" that are "necessary to the exercise of all others." A federal court's inherent powers are not governed by "rule or statute but by the control necessarily vested in the courts to manage their own affairs so as to achieve the orderly and expeditious disposition of case." In some sense, a federal court's inherent power can be conceptualized as a type of federal common law where a judge adopts practices and procedures as a gap-filling measure because the existing statutes and rules are insufficient. Nonetheless, the Supreme Court has recognized that a court's inherent powers are not exclusively exercised due to oversights by Congress or the rulemaking bodies, but instead inhere to broadly allow a federal court to properly function as an institution.

Given the three central sources of power for the federal judiciary—the Constitution, statutory law, and federal common law—the issue that remains is to what extent can Congress restrict or regulate a court's power by prescribing rules of practice and procedure. As a starting point, the Supreme Court has recognized that Congress has "undoubted power to regulate the practice and procedure of federal courts." As Chief Justice Warren noted in Hanna v. Plumer, the "constitutional provision for a federal court system (augmented by the Necessary and Proper Clause) carries with it congressional power to make rules governing the practice and pleading in those courts." And, indeed, Title 28 includes numerous provisions through which Congress mandates how the federal judiciary conducts its business—from how many Justices sit on the Supreme Court, to what constitutes a quorum on the Court, to what types of evidence can be admitted into a federal court proceeding, to rules of precedence among federal district court judges. Accordingly, the Court has interpreted Congress to have the power to promulgate mandatory rules of procedure that Article III courts have "no more discretion to disregard ... than they do to disregard constitutional provisions." And Congress' power even extends to regulate the inherent powers of a court.

Nonetheless, although some have described Congress's power over the federal judiciary's practices to be "plenary" in nature, the Supreme Court has recognized that Congress's authority to prescribe procedural rules for federal courts is not absolute. Specifically, Congress's power over procedure cannot extend so far as to erode functions of the federal judiciary that are at the heart of the Article III judicial power—namely the ability to independently and impartially resolve a case-or-controversy with finality. In other words, Congress cannot erode the "essential attributes of the judicial power" in the Article III courts. As a consequence, Congress cannot require a court to issue advisory opinions on matters of legal concern, as such a rule would require the judiciary to say what the law is outside of a case-or-controversy. Moreover, the legislature cannot subject a federal judicial opinion to review by a non-Article III body or retroactively command federal courts to reopen their final judgments, as such procedures would prevent an Article III court from ruling with finality and issuing dispositive judgments. Likewise, Congress cannot enact laws that erode the decisional or analytical independence of a federal court. In this regard, the Court has struck down congressional enactments that interfere with the judicial decision-making process as to effectively decide the outcome of a given case or essentially plunge the federal judiciary into a political role. In short, Article III places some limits on Congress's relatively broad authority to regulate the practice and procedures of federal courts. With these principles in mind, this report turns to several proposals attempting to regulate the practice of the FISA courts.

FISA Reform and Amicus Curiae

FISA proceedings primarily involve only one party, as the FISC is authorized to issue orders approving of electronic surveillance, certain physical searches, the use of a pen register or a trap and trace device, or the access to certain business records for foreign intelligence and international terrorism investigations upon a proper showing made in an application by a federal officer. Recent controversies over the nature of the government's foreign surveillance activity have prompted the argument that the ex parte nature of the judiciary's review of government surveillance requests under FISA deprives the court from hearing a "researched and informed presentation of an opposing view." In this vein, while some have suggested formally establishing an office for a permanent public interest advocate to represent "the interests of those whose rights of privacy or civil liberties might be at stake," others have proposed allowing or even requiring the FISC to, on a temporary or ad hoc basis , hear from certain individuals or interests groups who, as "friends of the court" or amici curiae , would brief the court on the privacy or civil liberty interests implicated by a government application. Proposals purporting to regulate the process by which the FISC hears from amici potentially raise several questions about their legal necessity and the extent to which Congress can mandate that a federal court hear from a particular party.

Background on the Amicus Curiae

Before delving into these issues, it is first important to note the historical origins of the amicus and the unique role that amicus curiae play in the federal courts. Amicus curiae , a Latin term literally meaning "friend of the court," has its roots in Roman law, where an amicus entailed a judicially appointed attorney who served to advise or assist a court in the disposition of cases by providing non-binding opinions on points of law with which the court was unfamiliar. The Roman amicus curiae became a forerunner for the Anglo-American amicus device. According to English common law pre-dating the American Revolution, a trial or appellate court could request or permit in its "uncontrolled discretion" an amicus to inform the court about various aspects of the law. In particular, an amicus functioned as an "impartial assistant to the judiciary," as an amicus 's "principal role" under the English common law was to "assist judges in avoiding error." With the continuation of English judicial traditions in the United States, American courts began embracing the use of amici in the early nineteenth century.

Over time, federal courts have accepted an increasingly broad and flexible role for amici . For example, the Supreme Court has generally recognized the power of Article III courts to appoint an amicus curiae "to represent the public interest in the administration of justice." Some federal courts have allowed amici to participate in an overtly partisan or adversarial nature. Other courts have limited when an amicus can proceed to instances where the amicus would be offering (1) a different perspective than the named parties; (2) impartial information on matters of public interest; or (3) observations on legal questions, as opposed to "highly partisan ... account[s] of the facts." Nonetheless, the "classic role of amicus curiae" involves "assisting in a case of general public interest, supplementing the efforts of counsel, and drawing the court's attention to law that escaped consideration." Regardless of what type of party constitutes a proper amicus , participation remains a privilege generally governed by the inherent authority of a court . Put another way, absent a statute or rule, under federal common law there is typically "no right to compel [a] court to permit one to appear as amicus curiae ."

Allowing the FISC to Hear from an Amicus Curiae

Several have suggested that Congress should establish a formal mechanism whereby the FISC, in its discretion, could solicit the independent views of an amicus curiae in appropriate cases. For example, the FISA Improvements Act, which was approved by the Senate Select Committee on Intelligence (SSCI) in October of 2013, if enacted would authorize the FISC and the FISA Court of Review to designate, when needed, one or more individuals to serve as amicus curiae "to assist the court in the consideration of" certain government applications made under FISA, such as those that present a "novel or significant interpretation of the law." The SSCI bill provides examples of the needed expertise to be an amicus curiae , such as being an "expert on privacy and civil liberties," and outlines the duties for a FISA amicus , in that the FISC's "friend" may assist the court in reviewing "any application, certification, petition, motion, or other submission that the court determines is relevant to the duties assigned by the court."

Congressional regulation of how the FISA courts hear from amici generally does not appear to raise serious constitutional questions. As noted earlier, the Supreme Court has stated that "Congress has undoubted power to regulate the practice and procedure of federal courts," which would presumably include the power to prescribe regulations with respect to amici that appear before a federal court. Indeed, Congress has in the past enacted several laws that allow courts to hear from a particular amici . Proposals like the FISA Improvements Act, which simply authorizes a court to appoint from a broad range of qualified individuals an amicus to assist in the proceedings, impose no firm mandates on the FISC that would threaten the "essential attributes of the judicial power," the constitutional limit to Congress's broad power to regulate federal practice and procedure. Instead of allowing "encroachment or aggrandizement of one branch at the expense of the other," the hallmark of a separation of powers violation, proposals that provide the FISA courts with formal statutory authority to appoint amici arguably enhance the power of the federal courts without simultaneously detracting from the power of the political branches.

While providing broad statutory authority to the FISA courts allowing them to appoint amici likely does not raise serious constitutional issues, a question remains as to whether such a statute is needed as a legal matter. As noted above, the ability of a court to appoint an amicus curiae to assist in the judicial proceedings has a long history that predates the Constitution, and federal courts have held that they possess inherent authority to appoint amici and permit the filing of briefs by them. In this vein, both the FISC and the FISA Court of Review have accepted amicus briefs during their proceedings. While formally codifying the FISA courts' authority in statute could arguably clarify the scope of the courts' authority with respect to amici and encourage the courts to exercise that authority more frequently, it is unclear what legal difference a codification of the amicus authority ultimately makes, as the statutory authority is largely duplicative of the authority the FISA courts already possess as a matter of their inherent power.

Requiring the FISC to Hear from an Amicus Curiae

Not all of the proposals attempting to regulate the FISA's courts' amicus authority leave the decision to appoint a friend of the court up to the discretion of the FISC or the FISA Court of Review. Instead, several proposals contemplate requiring the FISA courts to hear from amici .

Before discussing the legal issues raised by requiring the FISC to hear from an amicus , it is important to note that the nature of a "mandate" may ultimately depend on a matter of judicial interpretation. For example, the most recent version of the USA FREEDOM Act requires the FISC to hear the views of an amicus when considering an application for an order that "presents a novel or significant interpretation of the law." Under that bill, an application is considered to raise a novel or significant interpretation of law when "such application involves settled law to novel technologies or circumstances, or any other novel or significant construction or interpretation of any provision of law or of the Constitution of the United States, including any novel or significant interpretation of the term 'specific selection term.'"

On the one hand, this language may be viewed as placing significant discretion with the court as to whether a particular case truly is "novel" or "significant" in nature. In other words, while this language may facially "require" the court to appoint an amicus in a particular case, if the determination of whether a case fits within this mandatory category depends on a discretionary decision of the court, the congressional provision may function much like the proposals that allow the FISC to appoint amici . On the other hand, defining "novel or significant interpretation of law" to include the application of settled law to new technologies or circumstances might limit the judge's discretion whether to appoint an amicus . Because of the uniqueness and ever-shifting nature of surveillance techniques and investigations, it could be argued that almost every surveillance application will involve the application of settled law to new circumstances. Indeed, arguably nearly every act of any court requires applying settled law to a new circumstance. Under this reasoning, the FISC would have to appoint an amicus when considering almost every application.

In any event, legal questions could potentially arise from congressional attempts to mandate —as opposed to permit —an Article III court to hear from an amicus . First, it can be argued that a "mandatory amicus " proposal potentially conflicts with the constitutional norm that Article III courts, like the FISC, must have some degree of autonomy or independence in controlling their internal processes. A mandate that a federal court hear the views of an amicus in certain cases, contrasts with the historic amicus tradition which "hinge[d]" on the principle of providing the court with considerable flexibility and discretion as to when and how it may rely on a third party friend. If an amicus is viewed in the Anglo-American common law tradition as being an extension of the court itself, one could liken a congressional mandate as to who and when a federal court must hear from an amicus to a similar mandate as to who a court must hire as a member of the court's own staff. Such a restriction on an inherent judicial power could arguably limit the ability of a federal court to maintain its independence from the political branches, implicating a core Article III norm.

Second, mandating that the FISC hear from a particular amicus may raise constitutional questions about the nature of the amicus . The mandatory amicus proposal would functionally transform the role of an amicus from an individual whose views are heard based on the "sound discretion of the court[]" to a party who has the unfettered right to be heard from in the course of litigation. It could be argued that such a transformation of the amicus process nearly elevates an amicus to having the "full litigating status of a named party or a real party in interest." It is generally recognized that "[o]nly a named party or an intervening real party in interest is entitled to litigate on the merits." To the extent that the mandatory amicus proposal could be characterized as providing an amicus with some of the rights that are traditionally exclusive to that of a party, one could potentially argue that a mandatory amicus proposal violates Article III. The proposal does this, according to this line of argumentation, by statutorily empowering an individual who lacks Article III standing with the right to be heard by a federal court, forcing the judiciary to say what the law is outside of a case or controversy between two parties with a genuine stake in the matter. This concern may be particularly pronounced if the amicus 's role functions in a way typically assigned only to parties to the case, such as having the guaranteed right to ask for an appeal of a decision. Indeed, a recent FISC opinion deciding whether to allow for amicus briefing in a case noted that "most courts have recognized that the role of an amicus curiae is limited, and does not rise to the level of a party to the litigation," perhaps signaling a reluctance by the FISA courts to affording an amicus rights equivalent to those of a named party.

Nonetheless, such criticisms may very well be a result of the uncommon nature of a mandatory amicus proposal as opposed to any inherent constitutional infirmity in the proposal. One may question whether eliminating the court's discretionary power to hear from an amicus , while a historic power, truly erodes one of the "essential attributes of the judicial power" as encompassed by Article III. While having the discretionary power to appoint amici in a federal case is an ancient power for a court, it may be difficult to argue that such a power is "essential" to having the FISC function in line with the Constitution's envisioned scheme for federal courts. For example, even if the FISA courts were required to hear from a particular amicus , the court would not be obligated to adopt the views of the amicus or otherwise be unable to independently say what the law means. Indeed, requiring the court to hear from different perspectives on an issue arguably may ensure that the court's judgment remains independent and impartial, aligning with core Article III values. Moreover, while a mandatory amicus law would establish for the amicus a guaranteed right to be heard by the court, such a proposal does not go so far as to embed an amicus with the right to seek any sort of judicial relief from a federal court, such as having a right to appeal or the right to seek discovery, which would likely raise more serious concerns with respect to Article III standing.

It should be noted that there have been few laws and rules that have attempted to curb the federal judiciary's discretionary power over the use of amici . The Federal Rules of Civil Procedure, for example, are silent on the topic of amici curiae , leaving appointment of an amicus to be a product of a district court's inherent power. In contrast, both the Federal Rules of Appellate Procedure and Rules of the Supreme Court of the United States do not require an amicus to obtain leave from a court to file an amicus brief if the brief is filed on behalf of the United States, its officer or agency, or a state. While such rules functionally limit the discretion of a federal court in allowing the appearance of an amicus , each rule is a product of a decision of the Supreme Court of the United States, which, through the Rules Enabling Act, has the power to "prescribe general rules of practice and procedure" in federal courts. The federal appellate and Supreme Court rules' waiver of the need for government amici to obtain leave of court before appearing is both a provision that enhances the rights of a type of amicus traditionally provided with broader rights —government amici —and is a restriction imposed by the judiciary on itself. In other words, such rules may not raise the same constitutional concerns as a congressional command to a court to appoint a private party as an amicus .

Very few statutory provisions relating to amicus curiae go so far as to mandate that a federal court hear from a particular amicus . For example, several statutes permit certain executive branch officials to appear as amici in certain proceedings. Other statutes are phrased such that they impose a mandate on the government official in question to appear as an amicus without imposing a similar mandate on the court. However, the Commodity Exchange Act provides the Commodities Futures Trading Commission (CFTC) the "right to appear as an amicus in any proceeding brought by a state government in federal court under that Act." Another provision in Title 5 of the U.S. Code authorizes the head of the Office of Special Counsel to appear as an amicus in certain cases and requires a "court of the United States [to] grant the application of the Special Counsel to appear in any such action.... " While the plain language of these two laws appear to provide a mandate on the court to hear from certain government amici, no court has assessed the constitutionality of such a provision, leaving the constitutional status of a mandatory amicus statute judicially unresolved.

In addition to the question whether Congress can mandate that the FISA courts hear from an amicus , proposals to install an amicus in FISA proceedings raise two other interrelated questions: first, what is the appropriate nature and scope of the amicus's briefings to the FISA courts, and, second, whether it is within Congress's authority to define this scope. As described above, the nature and scope of the authority of the amicus has shifted over the years from an "impartial assistant to the judiciary" to one who plays a more adversarial role in defending the legal interests of existing or absent parties to the litigation. Even judges who have been skeptical of this modern role of amici have accepted a limited adversarial role in certain instances. Judge Richard Posner of the Seventh Circuit Court of Appeals, for example, has explained that an amicus brief should be allowed only when: (1) "a party is not represented competently or is not represented at all"; (2) "when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus to intervene and become a party in the present case); or (3) "when the amicus has unique information or perspective that can help the court beyond help that the lawyers for the parties are able to provide."

There do not appear to be any serious constitutional constraints to having a defined role for an amicus when that individual is briefing the FISA court; instead, at best, defining what an amicus can say to a court raises prudential questions about whether such an amicus 's role is appropriate. Amicus provisions like those proposed in legislation like the USA FREEDOM Act that require the amicus to "advocate as appropriate, in support of legal interpretations that advance individual privacy and civil liberties" would appear to align with even the most restricted views on the appropriate scope of what an amicus can discuss in briefing to a court. While the USA FREEDOM Act's language contemplates that the advocate would participate in FISA proceedings in an adversarial manner, the adversarial nature of such briefing, in and of itself, does not appear to breach the various prudential constraints limiting an amicus 's role when briefing a court. First, a FISA amicus would be utilized to represent an interest that is arguably not fully represented in current FISA proceedings. Second, because a FISA amicus must have expertise in "privacy and civil liberties, intelligence collection, telecommunications, or any other relevant area of expertise," the amicus will presumably be able to provide the court a unique perspective on the legal issues raised by the government's surveillance applications. Lastly, although a FISA amicus under the USA FREEDOM Act would be tasked with promoting legal interpretations that advance individual privacy and civil liberties, such a responsibility has to be done "as appropriate," a standard that is not very different from the current obligation of government attorneys to ensure that surveillance applications do not violate constitutional safeguards and a provision that may help ensure that the FISA amicus 's briefings do not become "highly partisan." Whether Congress, as opposed to the FISA courts, can define the role of an amicus during briefing raises similar questions as to whether Congress can mandate that the FISA courts hear from an amicus in the first place. While Congress has considerable power to regulate the procedures of the judiciary, a question could be raised as to whether Congress regulating an ancient power of a federal court, like its historically unfettered power regarding the amici that appear before the court, usurps the court's constitutional powers. As Congress has rarely attempted to regulate the amici process in federal courts, let alone regulate what an amicus can say before a court, there is simply no legal precedent available by which to assess whether a law defining the amicus 's role in briefing before a court is legally appropriate.

Mandating an En Banc Panel of the FISC

In 2008, FISA was amended to explicitly permit the FISC, on its own initiative, or upon the request of the government in any proceeding, or a party in a proceeding under § 215 or § 702, to hold a hearing or rehearing en banc . An en banc panel consists of all the judges that constitute the FISC. During debate of the FISA Amendments Act of 2008, lawmakers proposed mandating that the FISC sit en banc to make legal immunity determinations regarding telecommunication service providers who allegedly aided the federal government in surveillance gathering activities. In the wake of recent revelations about the NSA's foreign surveillance practices, at least one commentator has revived the mandatory en banc proposal for certain proceedings before the FISC. Congressionally mandating that the FISC sit en banc prompts questions regarding the constitutionality of such proposals. Before delving into those questions, it is first worth noting the background of en banc proceedings in federal courts.

History of En Banc Proceedings

En banc review—that is, review by all judges of a court—has its origins in the 1930s. In the wake of the Evarts Act of 1891, in which Congress created the three-tiered federal court system, growing caseloads in the appellate courts, coupled with the rise of certiorari review at the Supreme Court, led to an increasing number of inconsistent panel decisions within a given circuit. In 1938, the Ninth Circuit, faced with two conflicting panel rulings of that circuit, held that no mechanism existed in law to resolve the conflict and opted to certify the question to the Supreme Court. Two years later, the Third Circuit rejected the Ninth Circuit's reasoning and sat en banc to resolve the panel split. The Supreme Court granted certiorari to the Third Circuit's ruling and unanimously affirmed in Textile Mills Security Corp. v. Commissioner that the courts of appeals had the discretion to decide cases en banc . In doing so, the Supreme Court attached special importance to the capacity of the en banc hearing to promote the finality of decisions and to resolve internal circuit splits, as the courts of appeals "are the courts of last resort in the run of ordinary cases."

Seven years later, Congress codified the result of Textile Mills in S ection 46(c) of the Judicial Code of 1948. The provision, as amended, states that cases in the courts of appeals shall be heard and decided by a three-judge panel, unless a majority of the judges in regular active service order a rehearing by the circuit sitting en banc. The Supreme Court subsequently interpreted S ection 46(c) to be permissive in nature, such that the courts of appeals were empowered, but not required to sit en banc . In turn, the Court allowed each of the courts of appeals to "devise its own administrative machinery to provide the means whereby a majority may order [an en banc ] hearing." The framework for determining when an en banc hearing is appropriate is established in Federal Rule of Appellate Procedure 35, which states that an en banc hearing is "not favored and ordinarily will not be ordered" unless consideration is necessary to "secure or maintain" the uniformity of a court's decisions or the proceeding involves a question of "exceptional importance." In this vein, en banc rulings in the United States Courts of Appeals are a relatively rare phenomenon.

En banc hearings outside of the context of a federal appellate court are even more unusual, as there is no general statutory authority for federal trial judges to reach decisions as panels and apply those decisions as precedent for all judges in the district. In the late 1980s, some district courts proceeded en banc in evaluating the constitutionality of the federal sentencing guidelines. Other examples exist of district courts sitting en banc in complex criminal actions. Nonetheless, it remains anomalous for a court of first impression to review a matter by all of the judges on that court.

Legal Issues with Requiring an En Banc Panel for "Significant Interpretations" of FISA

There does not appear to be a major constitutional question raised by legislation requiring, as opposed to allowing, a federal court to sit en banc in certain circumstances. Requiring a federal court to sit en banc does not limit the ability of the court to independently adjudicate a matter to finality. Instead, a provision mandating more frequent use of the en banc process would merely require certain decisions to be made by a majority of the FISC instead of a single judge. Given this, it would appear that Congress can constitutionally require the FISC to sit en banc , because en banc decision-making does not, in and of itself, limit core Article III powers. After all, in Western P.R., the case in which the Supreme Court held that the en banc provisions of Section 46 of the Judicial Code were permissive in nature, the Courts' interpretation was not compelled by constitutional reasons. Instead, the Court reasoned that practical considerations, such as a contrary reading imposing "unwarranted extra burdens on the court," drove the Court's interpretation of Congress's intent in enacting the statute, implicitly conceding that Congress could impose mandatory en banc proceedings if it had had such an intent.

Indeed, in a related context, Congress has mandated the use of three-judge panels to adjudicate various categories of cases in the federal courts. For instance, in 1903, Congress established three-judge panels of the circuit courts to adjudicate antitrust suits brought by the federal government. That statute provided that when the Attorney General attested that the case involved questions of "general public importance," that case "be given precedence over others and in every way expedited, and be assigned for hearing at the earliest practicable day, before not less than three of the circuit judges" of that circuit. Similarly, in 1910, Congress required that any suit seeking to enjoin a state officer from enforcing an allegedly unconstitutional law had to be submitted to a three-judge panel consisting of at least one justice of the Supreme Court or any circuit judge, and the other two either district court or circuit court judges. Although Congress has since narrowed the use of these panels, they are still employed in a limited category of cases, such as certain claims under the Civil Rights Act of 1964. In this sense, requiring the use of en banc panels in certain FISA cases appears to be a neutral regulation of the courts "procedures" that aligns with a long historic precedent and does not appear to offend core Article III norms.

Altering Voting Rules of the FISC and the FISA Court of Review

Another suggested procedural change to the FISA judicial review process is to alter the voting rules of the FISC and the FISA Court of Review. A judicial voting rule is simply the number of votes required for a court to decide and give precedential effect to a case. The FISA Court Accountability Act ( H.R. 2586 ) would require that before an en banc panel of the FISC could act, it must have the concurrence of 60% of the sitting judges. H.R. 2586 would also require that any decision in favor of the government by the three-judge FISA Court of Review must be made unanimously.

This proposal to statutorily regulate the voting rules of federal courts is not unique. While it has never directly set the voting rules of the federal courts, Congress has established the number of Justices that sit on the Supreme Court and the number that constitute a quorum. Likewise, Congress has exercised considerable control over the lower federal courts, such as setting the number of judges that sit on each court of appeals and the number of appeals court judges needed to constitute a quorum. While Congress has made efforts to directly alter the voting rules of the Supreme Court and the courts of appeals, usually during periods of strong disagreement with the Court's rulings, none have been successful. Without congressional regulation, the federal courts have fallen back on the common law simple majority rule. While Congress has significant authority to regulate the practice and procedure of the federal courts, it is unclear whether directly setting the voting rules of a federal court falls within that power.

Because Congress has never enacted a voting rule for federal courts, neither the Supreme Court nor the lower federal courts have had the opportunity to address the propriety of such a law. Nonetheless, various arguments have been made that Congress lacks the authority to set the voting rules of the Supreme Court. For instance, one theory holds that once Congress vests the courts with the "judicial power," sets the number of judges on that court, and sets the quorum, Congress's authority to regulate the Court's procedure terminates, and the Court can exercise the power of all similar deliberative bodies to decide cases by a simple majority. A similar argument has been made that the structure of the Constitution itself mandates the common law rule of a bare majority. One observer contends that Congress is powerless to alter the default majority rule that applies in all deliberative bodies in the absence of a specific constitutional provision providing for an alteration of this rule. For instance, the Constitution provides each House of Congress the authority to "determine the Rules of its proceedings," but does not expressly provide that Congress may alter the voting rules of the federal courts. However, there are several current voting practices that deviate from the bare-majority rule that would undercut this argument. For instance, Congress currently sets the quorum of the Supreme Court at six, which is greater than the common law rule of a simple majority. Likewise, the Court's own implementation of sub-majority rules including the Rule of Four, which requires only four justices to grant certiorari review, and the "hold rule," which requires only three justices to hold a case, may weaken the argument that the use of simple majorities is constitutionally compelled.

Instead of an absolute bar on congressional regulation of the courts' voting rules, a more likely resolution of their constitutionality will turn on the degree of interference they might have on the FISA courts' exercise of the judicial function. As described above, while Congress has considerable authority to regulate the practice and procedure of the federal courts, it may not use this power to erode the core functions of the judiciary. Of particular concern with respect to altering the voting rules is the proposition enunciated in United States v. Klein , in which the Supreme Court refused to give effect to a statute that was said to "prescribe rules of decision to the Judicial Department of the government in cases pending before it[.]" Although the precise contours of Klein 's holding are subject to debate, one generally accepted interpretation is that Congress cannot regulate the jurisdiction of the federal courts in an attempt to dictate substantive outcomes.

Requiring a 60%, rather than majority, concurrence in the en banc proceeding would not appear to unduly interfere with the essential functions of these courts. Under this proposed rule, if the 60% threshold is not met, the decision below would be affirmed. With respect to proceedings under Section 215 and Section 702, which have recently caused the most concern for Congress, this proposal would tilt the scales in favor of affirming the one-judge FISC decision, but on its face would not primarily favor one result over another. The judges would still be permitted to interpret the law and decide the matter before them free from interference. And because this rule would primarily have a neutral effect on the FISC's rulings, it may not violate the principles established in Klein . Some may argue that this proposal interferes with the FISC's prerogative to set its own rules and adjudicate cases free from congressional interference, but as discussed, Congress has wide latitude to set the rules of the federal courts, and this proposed rule appears to fall within that authority.

The requirement of a unanimous vote in the FISA Court of Review for any decision in favor of the government poses a more serious risk of interfering with the independence of these courts. The proposal would not apply across the board to all decisions of the Court of Review, but instead singles out decisions in favor of the government. As a matter of course, this rule would prevent the court from entering an order in favor of one side even when two thirds of the court agrees with that decision. If viewed in that light, it could be interpreted as Congress seeking to dictate a substantive outcome in violation of Klein . Additionally, a broader argument could be made that by preventing the Court of Review from acting or issuing binding rulings with respect to certain cases, Congress is preventing it from acting as a duly constituted court. While the creation of the Court of Review was in Congress's sole discretion, it could be argued that once it was created, Congress cannot deprive it of the core functions of a federal court, including the ability to render final, "dispositive judgments" in cases before it. However, one may argue that while this rule may make it harder for the government to win on appeal, the proposal does not mandate a particular result and leaves the ultimate decision-making authority with the judges. Ultimately, like the other proposals altering the procedures and operations of the FISA courts, there is little judicial precedent to evaluate measures that would alter the courts' voting rules.