Over a period of months, the FBI used a confidential informant to secretly record private conversations among the members of a Southern California mosque, allegedly based on their religion alone. After learning about the surveillance, Yassir Fazaga and other individuals targeted by the informant filed suit in federal court, arguing that the FBI’s actions violated the Constitution and federal laws, including the Foreign Intelligence Surveillance Act (FISA). In response to this suit, the government claimed that information it needed to establish its defense was protected from disclosure by the state secrets privilege, which allows the government to withhold information from judicial proceedings if its disclosure would harm national security. The government further argued that because it could not defend itself against the plaintiffs’ claims without this privileged information, the case had to be dismissed.

Disagreeing, the U.S. Court of Appeals for the Ninth Circuit held that the plaintiffs’ claims could be adjudicated using procedures set forth in FISA for the handling of sensitive national security information. Those procedures allow district courts to review such information in secret, without public disclosure, in order to determine whether the electronic surveillance was lawfully conducted. According to the Ninth Circuit, FISA’s procedures for resolving the lawfulness of electronic surveillance displace the state secrets privilege, permitting courts to adjudicate claims that would otherwise be dismissed under the privilege. At the government’s request, the Supreme Court agreed to review the Ninth Circuit’s decision, and in September 2021, CAC filed a friend-of-the-court brief in support of the plaintiffs.

Although this case was primarily a dispute about statutory interpretation concerning the meaning of FISA, the government argued that constitutional considerations should influence how the Supreme Court interprets that statute. Specifically, the government claimed that the state secrets privilege is rooted in the Constitution, reflecting the separation of powers and the president’s authority over military and foreign affairs, and that therefore the courts should require a showing that Congress was “unmistakably clear” before concluding that the privilege was supplanted by federal legislation. Our brief rebutted those arguments.

As we demonstrated, the judiciary has never grounded the state secrets privilege in the Constitution. Instead, when the federal courts developed the privilege during the early twentieth century, they did so using their common law authority to craft evidentiary rules based on their own perceptions of sound public policy, without any reference to constitutional considerations. The idea of a state secrets privilege came from English common law, not the American Constitution, and none of the decisions that helped develop the privilege in the United States relied on the separation of powers or on inherent executive authority under Article II. In fact, when the Supreme Court first endorsed the privilege and adopted rules for its administration, the Court borrowed those rules nearly wholesale from contemporary standards in the United Kingdom. While the Court has since hinted that the Constitution might call for some form of a state secrets privilege, any relationship between the Constitution and the privilege that exists today remains undefined.

The government was wrong, therefore, to claim that the state secrets privilege has a “firm foundation” in the Constitution that should make courts reluctant to find the privilege displaced by federal legislation. Furthermore, we explained, when the state secrets privilege is used to dismiss lawsuits alleging that the executive branch violated federal laws, this affects the powers of all three branches of government, providing an additional reason why the analysis should not be skewed in favor of the executive in cases like this one.

In a unanimous decision, the Court reversed the Ninth Circuit and ruled that FISA does not displace the state secrets privilege. The Court limited its ruling to this “narrow question” of statutory interpretation, and it left open many other questions about the nature of the state secrets privilege and whether it should bar the plaintiffs’ lawsuit, remanding those questions to the Ninth Circuit to resolve. Notably, the Court did not endorse the government’s claim that the state secrets privilege has a constitutional foundation, leaving unresolved “whether the state secrets privilege is rooted only in the common law . . . or also in the Constitution (as the Government argues).”

On remand, the Ninth Circuit ordered the parties to file supplemental briefs addressing the remaining issues in the case. In July 2022, CAC filed an amicus brief in the Ninth Circuit supporting the plaintiffs, explaining again that the state secrets privilege is a product of federal common law, not constitutional law, and that the court’s analysis should not be affected by mistaken assertions that the privilege derives from the Constitution.