Can the Government Hide Its Misdeeds as 'State Secrets'?

A surveillance case will determine whether officials can be sued for "national security" rights violations.

The terrorist attacks of September 11 and the government exploitation of them to expand civilian surveillance continue to cast a shadow over our civil liberties. Now the Supreme Court is considering whether officials can escape accountability for violating people's rights by claiming relevant information is too secret to be considered. The case, FBI v. Fazaga, involves surveillance of Muslim Americans in the years after the attacks, but it could determine the protections people will enjoy as the powers-that-be move on to finding other supposed domestic enemies in our midst.

As the ACLU describes the case, it all started with FBI surveillance of mosques in Orange County, California, during an operation in 2006 and 2007. Sheik Yassir Fazaga and two congregants sued the feds for singling them out by planting audio recording devices and conducting electronic surveillance of homes, mosques, and businesses.

"The District Court for the Southern District of California dismissed their claims that the FBI unlawfully targeted Muslim community members for surveillance based on their religion, accepting the FBI's argument that further proceedings could reveal state secrets," the ACLU notes. "The Ninth Circuit Court of Appeals disagreed, instructing the district court to consider the plaintiffs' religious discrimination claims under procedures mandated by Congress in the Foreign Intelligence Surveillance Act (FISA), which specifies how courts should handle sensitive evidence in cases involving surveillance conducted for national security purposes."

The FBI appealed, which lands us before the United States Supreme Court with the justices set to determine not whether the plaintiffs' rights were violated, but whether the courts should be allowed access to information that would permit them to proceed with the case. The government argues, once again, that some matters are so sensitive that the courts shouldn't even be able to consider whether the government acted with respect for constitutionally protections.

State secrets privilege, as the doctrine is known, has a long and sketchy history, evolving from bad official behavior after a 1948 plane crash that killed several civilian observers. When the observers' widows sued in United States v. Reynolds, the government argued that information about the plane was too super-secret to be revealed in court. The Supreme Court agreed that some things are too sensitive to be used in legal proceedings and gave the executive branch a free pass to invoke the phrase "national security" as a shield against accountability.

"Decades later, declassified documents revealed that the flight had no national security import at all and that Air Force officials had perjured themselves when they told the Court otherwise," Reason's Matt Welch observed in 2006. "In the meantime, the ruling provided the framework for executive privilege, which the Bush administration has been trying to expand."

Not just the Bush administration appreciated state secrets privilege, of course; all presidents enjoy the ability to act without consequence. That's how we end up all these years later with the question of whether the state secrets privilege is so broad that it can protect federal agents from the need to square spying on Americans with the protections afforded by the Constitution.

It should be noted that the Supreme Court isn't considering whether whatever secrets the FBI claims to be preserving should be introduced into open court, but whether they'll be privately considered by a judge.

"The 9th Circuit determined that, instead of dismissing claims when the government invokes the state-secrets privilege, courts should use the procedures outlined in Section 1806(f) of the Foreign Intelligence Surveillance Act to determine whether the surveillance was legally authorized and conducted," Amy Howe commented at SCOTUSblog. "That provision establishes a mechanism for a federal district judge to review sensitive surveillance information behind closed doors if a regular public hearing would harm national security."

So the government isn't arguing just that some information is too sensitive for the public, but also that it should be kept from judges' eyes. That would leave people with no recourse at all when federal agencies invoke the magic phrase "national security" to block lawsuits alleging rights violations.

"In a world in which the national security state is growing larger every day, that's quite a power," observed Justice Neil Gorsuch during oral arguments on November 8.

The outcome of this case is important not just to the plaintiffs, but to anybody who alleges abuse by a government increasingly inclined to classify its motivations, activities, and resources as secrets to be kept from the grubby fingers and peering eyes of the little people. While that government has largely moved on from the concerns that drove it to spy on mosques in Orange County, that doesn't mean it's no longer a threat to Americans.

"The Homeland continues to face a diverse and challenging threat environment as it approaches several religious holidays and associated mass gatherings that in the past have served as potential targets for acts of violence," the Department of Homeland Security announced in a National Terrorism Advisory Bulletin dated just last week. "These threats include those posed by individuals and small groups engaged in violence, including domestic violent extremists (DVEs) and those inspired or motivated by foreign terrorists and other malign foreign influences."

Just last month, the feds turned their attention against angry parents protesting against pandemic policies and curricula content at school board meetings.

"Attorney General Merrick B. Garland directed the FBI and U.S. Attorneys' Offices to meet in the next 30 days with federal, state, Tribal, territorial and local law enforcement leaders to discuss strategies for addressing this disturbing trend," the Justice Department announced October 4. "These sessions will open dedicated lines of communication for threat reporting, assessment and response by law enforcement."

However legitimate or bogus you consider the dangers from domestic violent extremists and mad moms, there's enormous potential for rights abuses. It doesn't take much for surveillance to turn into serious privacy violations, or for infiltration to turn into entrapment. Whether the latest targets of government attention will be able to seek redress in court depends, in part, on the outcome of Fazaga.

Ideally, government wouldn't violate our rights at all. But in the real world, abuses seem inevitable, and we need access to courts that hold officials to account without letting them argue that their misdeeds are too secret to be addressed.