The state secrets privilege in challenges to government surveillance programs
As the Washington Post reports, one of the legal obstacles the ACLU may face in its lawsuit challenging NSA surveillance of telephony metadata is the state secrets privilege. In recent years, the government has used the state secrets privilege with increasing frequency to block lawsuits and prevent discovery on national security grounds. According to Professor Donohue, between 2001 and 2009 “the government has invoked the state secrets privilege in more than 100 cases, which is more than five times the number of cases previously considered.”
It’s not clear whether the government will invoke the privilege in the ACLU’s case—the DNI already acknowledged the existence of the challenged surveillance program, though not all of its details. But the scope of the state secrets privilege is the keystone issue in another important surveillance case, Jewel v. NSA. The plaintiffs in Jewel, represented by the the Electronic Frontier Foundation, have weathered a number of challenges to their suit against the NSA (including a win on standing before the Ninth Circuit), putting the issue of state secrets front and center. The question before the court is whether FISA’s procedural mandates displace the privilege in the context of civil litigation over national-security surveillance.
The state secrets rulings in Jewel and other cases will have a significant impact on the effectiveness of ongoing and future legal challenges to executive surveillance. If the government prevails, it will have broad authority to block lawsuits and discovery implicating its surveillance programs. A win for the plaintiffs, on the other hand, would allow legal challenges (at least those that survive standing, sovereign immunity, etc.) to proceed under FISA’s mandates, which require courts to implement secure procedures to protect government secrets.
Jewel is currently before the Northern District of California; the government recently requested an abeyance in the case. The briefs and other relevant documents are available on EFF’s website, here. [The Berkeley Samuelson Clinic (my employer) filed an amicus brief in the case, on behalf of People For the American Way Foundation. As always, the views expressed here are mine and do not necessarily reflect those of the Samuelson Clinic or its clients.]