Access to Justice

Federal Bureau of Investigation v. Fazaga

In FBI v. Fazaga, the Supreme Court is considering 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.

Case Summary

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 is primarily a dispute about statutory interpretation concerning the meaning of FISA, the government argues that constitutional considerations should influence how the Supreme Court interprets that statute. Specifically, the government claims 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 rebuts those arguments.

As we demonstrate, 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 is 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 explain, 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.

Case Timeline

  • September 28, 2021

    CAC files amicus brief in the Supreme Court.

    Sup. Ct. Amicus Br.
  • November 8, 2021

    Supreme Court will hear Oral Argument

More from Access to Justice

Access to Justice
U.S. Supreme Court

Reed v. Goertz

In Reed v. Goertz, the Supreme Court is being asked to consider when the statute of limitations for a Section 1983 claim challenging the adequacy of state procedures for seeking DNA testing of crime-scene evidence...
Access to Justice
U.S. Court of Appeals for the Fourth Circuit

Roe v. United States

In Roe v. United States, the U.S. Court of Appeals for the Fourth Circuit is considering whether an employee of the federal judiciary can sue under the Fifth Amendment for sex discrimination experienced in the...
Access to Justice
U.S. Court of Appeals for the Fifth Circuit

J.W. v. Paley

In J.W. v. Paley, the U.S. Court of Appeals for the Fifth Circuit is considering whether public school officials who use excessive physical force against students may be held accountable for violating the Fourth Amendment.
Access to Justice
U.S. Supreme Court

Frasier v. Evans

In Frasier v. Evans, the Supreme Court is being asked to consider whether police officers who knowingly violated a person’s First Amendment right to film them making an arrest are entitled to qualified immunity.
Access to Justice
U.S. Court of Appeals for the Fifth Circuit

Gonzalez v. Trevino

In Gonzalez v. Trevino, the U.S. Court of Appeals for the Fifth Circuit is considering what threshold requirements individuals must satisfy to bring First Amendment claims against a state or local official for arresting them...
Access to Justice
June 25, 2021

RELEASE: Roberts Court Hands Business Another Win, Closes Courthouse Doors to Those Harmed by Corporation

WASHINGTON – Following the Supreme Court’s ruling in TransUnion LLC v. Ramirez, Constitutional Accountability Center...
By: Elizabeth B. Wydra