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.

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Resources:

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

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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.

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