WASHINGTON – Following the Supreme Court’s ruling this morning in Federal Bureau of Investigation v. Fazaga, a case in which the Court considered whether allegations of unlawful government surveillance may be adjudicated using procedures in the Foreign Intelligence Surveillance Act instead of being dismissed as a result of the state secrets privilege, Constitutional Accountability Center Senior Appellate Counsel Brian Frazelle issued the following reaction:

While we are disappointed that the Court did not recognize that FISA displaces the state secrets privilege, we’re relieved that the Court stopped there, leaving other questions open in a way that may allow for accountability in this and other cases. In particular, the government argued that the state secrets privilege has a constitutional foundation in the president’s duties under Article II. If accepted, that position could make it harder for Congress and the courts to rein in future abuses of the privilege. But the Court avoided resolving the issue, indicating that it remains an open question whether the privilege has any basis in the Constitution or is instead (as we showed in our brief) entirely a product of the common law.

#

Resources:

CAC case page in Federal Bureau of Investigation v. Fazaga: https://www.theusconstitution.org/litigation/federal-bureau-of-investigation-v-fazaga/

##

Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit CAC’s website at www.theusconstitution.org.

###