Access to Justice

RELEASE: State Secrets Privilege Not Grounded in Constitution

WASHINGTON – Following today’s oral argument in FBI v. Fazaga, where the Supreme 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 Chief Counsel Brianne Gorod issued the following statement:

The Supreme Court is considering today whether individuals who allege that the FBI unlawfully targeted them for surveillance because of their religion can have their day in court, and the government has looked to the Constitution in an attempt to buttress its argument that no court should hear these individuals’ claims. The government is wrong.

According to the government, dismissal of the plaintiffs’ case is required by the state secrets privilege, which allows the government to withhold information from judicial proceedings if its disclosure would harm national security. And according to the government, the state secrets privilege is rooted in the Constitution, and that should influence the way the Justices interpret the Foreign Intelligence Surveillance Act, the law that the Ninth Circuit held displaces the state secrets privilege and allows the case to proceed.

As we explain in our brief, the history of the state secrets privilege makes clear that the government’s argument is wildly off base. 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. When the Justices decide whether this case can proceed, their decision should not be influenced by an inaccurate account of the history of the privilege.

#

Resources:

CAC case page in FBI 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.

###

More from Access to Justice

Access to Justice
May 9, 2024

RELEASE: In overbroad ruling, conservative majority restricts the rights of innocent car owners whose vehicles are seized by the government

WASHINGTON, DC – Following today’s decision at the Supreme Court in Culley v. Marshall, a...
By: Brian R. Frazelle
Access to Justice
U.S. Supreme Court

Williams v. Washington

In Williams v. Washington, the Supreme Court is considering whether states may force civil rights litigants who bring claims against state officials in state court under Section 1983 to first exhaust their administrative remedies.
Access to Justice
April 12, 2024

RELEASE: Court Unanimously Rejects Atextual “Transportation Industry” Requirement for FAA Exemption, Allowing Truck Drivers Their Day in Court

WASHINGTON, DC – Following today’s decision at the Supreme Court in Bissonnette v. LePage Bakeries...
By: Miriam Becker-Cohen
Access to Justice
March 20, 2024

RELEASE: Justices Weigh Immunity for Government Officials Who Target Political Adversaries with Arrest

WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Gonzalez v....
By: Brian R. Frazelle
Access to Justice
February 20, 2024

RELEASE: Court Grapples Once Again with Federal Arbitration Act’s Exemption for Transportation Workers

WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Bissonnette v....
By: Miriam Becker-Cohen
Access to Justice
February 19, 2024

Bakery Drivers Head to High Court Searching for Arbitration Exit

Bloomberg Law
Industry test would add fights on transportation firm meaning With circuits split, high court to...
By: Miriam Becker-Cohen, Jennifer Bennett