FBI v. Fazaga (20-828)

argument 20-828

FBI v. Fazaga

Supreme Court of the United States 2h 6m 8 speakers 8 chapters transcribed 7 days ago official recording ↗

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What is the State Secrets privilege and why is it considered a constitutional doctrine?

John G. Roberts 0:00

We will hear argument first this morning in case twenty eight twenty eight, the Federal Bureau of Investigation versus

Daniel E. Needler 0:06

Fasaga. Mr Nieder. Mr Chief Justice, and may it please the court. The state secrets privilege is firmly grounded in the constitution and the common law and is critical to safeguarding the national security. The Ninth Circuit did not disagree with the district court's conclusion that the information concerning the foreign intelligence investigation at issue here was falls within that privilege. The Ninth Circuit instead held that Section 1806F of FISA displaces the State Secrets privilege and requires the District Court to adjudicate the merits of plaintiff's challenge using the very information that is covered by the privilege. That novel interpretation cannot be squared with the text, context, or purpose of Section 1806F.

Daniel E. Needler 0:56

That section purpose is to provide a special mechanism for the suppression of evidence when the government seeks to use it against an aggrieved person in a judicial proceeding or other proceeding. The Ninth Circuit's first rationale was that the government uses information against a party when it invokes the state secrets privilege, but the government invokes the privilege to prevent the use of information, not to facilitate its use. Indeed, in this case the government argued and the district court agreed that because the information concerning the reasons, the subjects, the sources and methods of this foreign intelligence investigation was so central to the case that the case that the First Amendment claim had to be

Daniel E. Needler 1:44

Dismissed. The Ninth Circuit's other rationale was equally erroneous. It ruled that plaintiff's prayer for relief seeking an injunction requiring the FBI to destroy or return the information comes within 1806 F's reference to a motion or request to discover or obtain surveillance application orders and related materials. But that clause governs discovery and aid of a suppression motion. It likewise does not displace the privilege. At the very least, given the constitutional and deep common law roots of the State Secrets Privilege, Section 1806 cannot be read to pre uh to reflect a congressional intent that would be required to abrogate the privilege.

Clarence Thomas 2:27

Uh Mr. Needler, do you place you I a few times in your opening remarks you referred to this as a common law privilege. Uh is that your argument that it's based in common law rather than inheres in executive power?

Daniel E. Needler 2:44

No, uh we we think it's uh very strongly rooted in executive power. It uh uh it's it's also friendly rooted in the common law. Um and the the reflection of it being in the uh in as part of the executive power goes all the way back uh to the founding. Some many of those early disputes were vis-a-vis uh Congress, not the courts, but the basic point of the need for the executive to protect information pertaining to the nation's security uh it as being part of the presidential prerogative and the executive branch necessity uh uh goes all the way back to the founding. But it's also recognized for very good reasons, the same reasons really, as a matter of federal common law.

Clarence Thomas 3:26

One uh final question. The um Uh respondents seems to make quite a bit of the two cases, Totten and Reynolds, and argues that these two have uh separate doctrines with respect to executive powers, uh or to state secrets. Uh Do you think they're two separate doctrines or is it just one doctrine?

Daniel E. Needler 3:54

We think at bottom that it's just one doctrine. Uh the the question of the um privilege uh in the first instance goes to the exclusion of the evidence.

Clarence Thomas 4:04

Yeah.

Daniel E. Needler 4:05

uh from the proceeding. But then the next question is what happens if the evidence is excluded? And in that situation, as we argued here, where the evidence is so central, at least where the evidence is so central to the case, or its adjudication would risk disclosing information at the core of the case, the case should be dismissed. And in fact, this Court's decision in Tenet versus Doe rejected the claim or the case contention that uh th that the doctrine of Totten was simply a contract doctrine.