71 Am. U. L. Rev. 235 (2021).
Twenty years after 9/11 and the beginning of the “War on Terror,” access to judicial redress arising out of national security programs remains mired in a labyrinth of procedural hurdles, including the state secrets privilege. Nearly seventy years after the Supreme Court first enunciated the modern state secrets privilege, courts still struggle to articulate a practicable standard that appropriately balances the government’s need to protect its secrets and plaintiffs’ need to vindicate their constitutional rights. This issue is particularly acute in surveillance litigation, where broad construction of the privilege precludes plaintiffs from establishing standing. However, as the Ninth Circuit found in Fazaga v. FBI, the Foreign Intelligence Surveillance Act (FISA) empowers courts to determine the lawfulness of electronic surveillance through its in camera, ex parte procedures.
This Comment argues that FISA’s procedures displace the state secrets privilege in electronic surveillance cases, even where the government invokes the privilege to protect evidence regarding whether a particular plaintiff was subject to surveillance and thus an “aggrieved person” under FISA. In doing so, this Comment traces the development of post-9/11 surveillance litigation and the current split over FISA preemption. This Comment then compares the Ninth Circuit’s findings in Fazaga to two National Security Agency (NSA) surveillance cases: the Fourth Circuit’s decision in Wikimedia Foundation v. NSA, in which it rejected a similar preemption argument in a challenge to NSA surveillance; and the Ninth Circuit’s decision in Jewel v. NSA, in which it upheld a district court dismissal on state secrets grounds after an exhaustive in camera, ex parte review of classified documents. This Comment argues that the district court in Jewel correctly undertook in camera review because FISA’s procedures apply even where the government’s invocation of the privilege cuts to the plaintiff’s status as an aggrieved person. This Comment then concludes by linking these challenges to NSA surveillance programs to the ongoing privacy debate between the European Union and United States. In particular, it argues that the Court of Justice for the European Union’s decision in Schrems II, which struck down the E.U.-U.S. Privacy Shield Framework, underscores the continued importance of mechanisms for judicial redress in electronic surveillance cases in aligning the United States and European Union on data privacy.
While FISA’s procedures remain secretive and deferential to the government, they offer an important opportunity for redress for surveillance abuses. By using § 1806(f)’s procedures, plaintiffs have greater actionable rights in U.S. courts, which may bring the United States into greater alignment with Europe on data protection and redress for surveillance abuses. As the Supreme Court prepares to decide the first two state secrets cases arising out of post-9/11 national security programs—Fazaga and United States v. Zubaydah—further engagement around this topic is necessary to strike the proper balance between government secrecy and redress.
* Senior Staff Member, American University Law Review, Volume 71; J.D./M.A. Candidate, May 2022, American University Washington College of Law; B.A., Tufts University, 2014. I would like to thank the entire American University Law Review team for their work in preparing this piece for publication. I am deeply grateful to my advisor, Professor Alex Joel, who challenged me to make the most persuasive argument possible. I am also eternally grateful to my partner, Leah, and my family for their support.