Brief of Amicus Curiae, In re Opinions & Orders of this Court Addressing Bulk Collection of Data Under the Foreign Intelligence Surveillance Act, No. Misc. 13-08 (FISA Ct. June 13, 2018)

Authors

Laura K. Donohue, Georgetown University LawFollow

Document Type

Court Brief

Publication Date

6-13-2018

Abstract

Under separation of powers doctrine, Congress lacks the authority to pass statutes to grant, or deny, the FISC jurisdiction over its opinions. All three branches agree that FISC is an Article III court. Constitutional courts are vested with “the judicial power” of the United States, which is insulated from the other two branches. It includes the power to issue opinions disposing of cases. If the other branches could strip the courts of authority over their judgments, they would be able to manipulate the law, undermining the protections for judicial independence. The “least dangerous branch” would lose all power. All it has is its judgments on matters of law.

In 2007 this Court correctly held that it has inherent authority over its own records. In re Motion for Release of Court Records, 526 F. Supp. 2d 484, 486-87 (FISA Ct. 2007). Congress has broad authority to set the court’s subject matter jurisdiction. While specialized, FISC is an Article III court. Article III courts have essential inherent powers that stem from their responsibility to administer justice. Hundreds of cases recognize such authorities. See App. B 52-70. To the extent that inherent powers may be merely useful or beneficial, courts can take the initiative but then must give way to legislative direction. Insofar as inherent powers are essential or necessary to the execution of core judicial power, then Congress cannot interfere. ACLU v. Holder, 673 F.3d 245, 255-56 (4th Cir. 2011); In re Stone, 986 F.2d 898, 901-902 (5th Cir. 1993); Eash v. Riggins Trucking Inc., 757 F.2d 557, 562-63 (3d Cir. 1985) (en banc). Issuance of opinions is a core judicial power. Control over them is an essential inherent authority. Article III courts thus have authority over their own records. Nixon v. Warner Commc’ns Inc., 435 U.S. 589, 598 (1978). Courts routinely exercise jurisdiction over third party requests. They continue to exercise this authority, without any statutory authorization, even decades after the underlying action ends. See, e.g., United States v. Bus. of Custer Battlefield Museum & Stores, 658 F.3d 1188, 1192-96 (9th Cir. 2011); Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1310-1313 (11th Cir. 2001); In re Petition of American Historical Association, 49 F.Supp.2d 274, 295 (1999). The court in which the matter first occurred exercises jurisdiction.

The FISC has a critical role to play in determining which parts of its opinions should be withheld from the public. The court is not unique in dealing with classified matters. Article III courts confront, scrutinize and reject Executive Branch claims. See App. C 76-96. To the extent that the executive attempts to masque matters of law, it grossly overreaches. For matters of fact, the FISC should apply the test used by other Article III courts, taking into account reasonableness, good faith, specificity, and plausibility.

Scholarly Commons Citation

Donohue, Laura K., "Brief of Amicus Curiae, In re Opinions & Orders of this Court Addressing Bulk Collection of Data Under the Foreign Intelligence Surveillance Act, No. Misc. 13-08 (FISA Ct. June 13, 2018)" (2018). Georgetown Law Faculty Publications and Other Works. 2071.
https://scholarship.law.georgetown.edu/facpub/2071