Surveillance, State Secrets, and the Future of Constitutional Rights

Abstract

The Supreme Court’s 2022 decision in Federal Bureau of Investigation v. Fazaga heralds a worrying trend. Over the past 15 years, as more information about how the government wields its foreign intelligence collection authorities on U.S. soil has become available, it has become clear that the government has repeatedly acted outside its constitutional and statutory limits, and at times, in flagrant disregard for judicial orders. As a result, dozens of cases challenging surveillance have been making their way through the courts. Unlike in prior eras, in certain cases it has become easier for litigants to establish an injury-in-fact in light of the information available and the programmatic nature of collection. In response, the government has crafted a new state secrets analysis, raised the privilege early in litigation to have suits dismissed, broadened its assertion to encompass entire categories of information, and claimed as an Article II constitutional power what for centuries has been a common law rule. Because of the government’s shift, what is now at stake is the possibility of any litigant to ever challenge illegal and unconstitutional surveillance. Fazaga represents the tip of the iceberg in terms of the risks to individual rights that would follow should the government ultimately prevail.

Keywords: State Secrets, Fazaga, Section 702, FISA, Wikimedia, NSA, Surveillance, National Security Agency, FBI, Federal Bureau of Investigation, Foreign Intelligence, Foreign Intelligence Surveillance Act, Sunset, Reynolds, Totten, FOIA