Introduction
The decisions last Term in United States v. Husayn (Abu Zubaydah)1 and FBI v. Fazaga2 perpetuate the Supreme Court’s practice of insulating national security abuses from meaningful judicial review. I agree with Professor Robert Chesney that these decisions reflect a status quo orientation toward the state secrets privilege and reinforce deference to the executive branch in the name of national security.3 But Chesney’s analysis understates both the problems with these decisions and the harm of judicial deference, especially for racialized communities long construed as national security threats.
Abu Zubaydah shields foreign intelligence agencies’ covert cooperation with the U.S. government even when those agencies know or suspect that their cooperation will facilitate egregious human rights violations. Cooperation for such purposes deserves no protection from U.S. courts, and U.S. promises to keep such cooperation secret undermine the nation’s credibility, rather than honoring its word. Fazaga holds that a provision of the Foreign Intelligence Surveillance Act of 19784 (FISA) authorizing a court to review in camera the legality of surveillance does not displace the state secrets privilege. While permitting the challenge to Federal Bureau of Investigation (FBI) surveillance to survive another day in that case, the decision stymies efforts to contest surveillance, especially where plaintiffs do not have independent evidence that they’ve been surveilled. Moreover, several Justices’ comments at oral argument suggest they are willing to dismiss litigation based on state secrets in a broader fashion than the Court has previously endorsed.5
At a time when the United States should be ending its two-decade-long global war on terror, these decisions further empower the vast and largely unchecked national security state. This Response discusses what these decisions get wrong, how they fit within a larger pattern of Supreme Court decisions blocking judicial review of security policies, and why these developments matter for human rights, racial justice, and democracy. Part I addresses the decisions themselves, while Part II places them in the context of the Court’s recent rulings on national security and executive power.
I. The Core Problems with Abu Zubaydah and Fazaga
A. United States v. Abu Zubaydah
Abu Zubaydah, whom the CIA waterboarded over eighty times and buried alive for hundreds of hours based on the false claim that he was a senior al Qaeda lieutenant, sought to subpoena the testimony of two CIA contractors for use by a Polish court investigating the potential complicity of Polish officials.6 Chesney criticizes the Supreme Court for introducing “doctrinal confusions” into state secrets law in its decision upholding the government’s assertion of the privilege.7 While I agree that the Court’s decision muddled doctrine, the problem with the decision goes far beyond lack of clarity. The bigger issue is that Abu Zubaydah shields disclosure of U.S. collaboration with foreign intelligence agencies even when that collaboration is for the specific purpose of violating human rights.
As Chesney notes, much of the argument over Abu Zubaydah turned on this question: Is a secret still a secret if the whole world knows?8 If numerous sources, including the President of Poland in office at the time of the relevant events, have confirmed that there was a CIA detention site in Poland, can the U.S. government still claim it would harm national security for it to confirm (even implicitly) the existence of that black site in Poland?9 The majority said yes, that “sometimes information that has entered the public domain may nonetheless fall within the scope of the state secrets privilege.”10 In other words, the state secrets privilege could be used to avoid confirmation by the government or its private contractors of widely known facts that would seem not to meet the definition of a “secret” at all. Justice Gorsuch, joined by Justice Sotomayor, countered in dissent that “[t]here comes a point where we should not be ignorant as judges of what we know to be true as citizens.”11
The majority accepted the government’s claim that allowing the CIA contractors to testify could harm national security because any official acknowledgment of cooperation with Poland would breach the trust needed for secret relationships with foreign intelligence agencies.12 According to the majority, “to confirm publicly the existence of a CIA site in Country A, can diminish the extent to which the intelligence services of Countries A, B, C, D, etc., will prove willing to cooperate with our own intelligence services in the future.”13 Even when there is public information revealing such cooperation, a “former CIA insider’s confirmation” would still be harmful because “it leaves virtually no doubt as to the veracity of the information that has been confirmed.”14
While it seems reasonable that, in some cases, the government’s official acknowledgment of facts otherwise in the public domain might alienate a foreign government by removing any doubt about their truth, it’s hard to see that risk here, in a case where the former President of that country has admitted those facts and voluminous other evidence confirms them.15 Given the Court’s rejection of a waiver of the state secrets privilege on these facts, it will be hard to establish waiver in future cases relying on widespread public disclosure of an erstwhile secret. Compounding the problem, four concurring Justices signaled an even more deferential attitude toward the government’s assertions. Justices Thomas and Alito would have required a litigant to prove a need for the information in question before a court scrutinized the government’s assertion of state secrets,16 changing the recognized approach,17 and Justices Kavanaugh and Barrett emphasized that “a court’s review from start to finish must be deferential to the Executive Branch.”18
As problematic as this deference is in buttressing the state secrets privilege, the bigger issue is that the decision recognized no exception to promises of secrecy made to foreign governments when the purpose is to enable egregious human rights violations or other clear violations of international law. It is one thing for the Court to protect from disclosure, in general, clandestine cooperation between intelligence agencies. It is quite another for the Court to respect confidentiality in a case where that cooperation facilitated torture.
In 2014, after reviewing extensive evidence, the European Court of Human Rights concluded not only that the evidence “established beyond reasonable doubt” that Abu Zubaydah was detained at a CIA facility in Stare Kiejkuty, Poland,19 but also that Polish authorities bore some responsibility for Abu Zubaydah’s mistreatment. The European Court concluded that “Poland knew of the nature and purposes of the CIA’s activities on its territory” and that, given contemporaneous information about U.S. abuse of terrorism detainees, “Poland ought to have known that, by enabling the CIA to detain such persons on its territory, it was exposing them to a serious risk of treatment” violating human rights.20
Neither the CIA nor foreign intelligence agencies should have any expectation of confidentiality in U.S. courts for cooperation designed to enable blatantly unlawful acts. International law unequivocally bans torture21: multiple international human rights covenants prohibit it,22 international humanitarian and criminal law designates it a war crime,23 and customary international law recognizes the prohibition on torture as having achieved the status of a peremptory norm.24 U.S. law should not honor promises of secrecy designed to facilitate torture or similar violations.25 If a foreign agency cooperates with U.S. agencies with actual or constructive knowledge that their actions are enabling blatant U.S. human rights violations, they cooperate at their peril. In such a case, we should want the “intelligence services of Countries A, B, C, D, etc.” to refuse cooperation, and our legal doctrine should reflect that. We should never again want to see fifty-four foreign countries participate in a secret CIA detention and “extraordinary rendition” program involving the torture of human beings.26
Other areas of the law balance the protection of confidentiality with countervailing interests in preventing crime or seeking truth. The best example of this is the crime-fraud exception to the attorney-client privilege, which makes exceptions to the “seal of secrecy” between a lawyer and a client where communications aim to facilitate a future crime or fraud.27 The privilege does not protect, for instance, a criminal defendant’s jailhouse call to his lawyer seeking help to murder a witness.28 Nor should the state secrets privilege bar the disclosure of intergovernmental cooperation undertaken to help the CIA torture detainees.
The U.S. government’s position in Abu Zubaydah, vindicated by the majority decision, reflects a skewed understanding of the value of trust between nations. The CIA interrogation program violated multiple international covenants prohibiting torture that the United States had ratified.29 Yet, in Abu Zubaydah, the government — with the Court’s endorsement — honored promises of secrecy made in the dead of the night to facilitate torture above the public commitments not to torture that the United States made to nations and people around the world. The implication seems to be that “America’s word” matters to our security when we promise to conceal the cooperation of foreign governments in our abuses but not when we promise to refrain from such abuses in the first place.30
B. Fazaga v. FBI
In Fazaga, the Supreme Court held that a provision of FISA authorizing a court to review ex parte and in camera the legality of surveillance does not displace the state secrets privilege.31 Despite ruling for the government, the decision does not end the plaintiffs’ case, because they can still argue on remand that their religious discrimination claims should move forward even if certain material is privileged.32 But the decision makes it harder for others who suspect illegal surveillance even to initiate legal challenges, and the oral argument in the case suggests a Court that will protect government secrecy at the expense of accountability.
As an initial matter, it is important to recognize the significance of the Fazaga litigation beyond the state secrets issue. While torture and indefinite detention symbolize the war on terror’s human rights failures abroad, the racial and religious profiling of U.S. Muslims has had devastating effects at home. In Fazaga, a confidential informant posing as a convert to Islam befriended southern California Muslims, secretly recorded hundreds of hours of conversations, and attempted to bait them with talk of jihad.33 He later swore under oath that FBI officials told him that Islam threatened national security and instructed him to surveil Orange County Muslims at large, “not terrorists, spies, or even ordinary criminals.”34
In describing the circumstances that led to this case, Chesney describes informants as sometimes crossing the line between passive observation and active coercion.35 That’s true, but it’s important to emphasize that the plaintiffs are challenging the FBI’s conduct, not the actions of a rogue informant. Indeed, U.S. Muslim communities have repeatedly argued both that the FBI has indiscriminately surveilled their communities36 and that it has used informants to induce and coerce young people into supporting violent plots they would never have embraced on their own.37 The allegation that these problems stem from policy, not just individual “bad apples,” gains force from the breadth of the FBI’s authority: the agency’s own guidelines, for instance, authorize agents to conduct “assessments” of potential criminal activity without any factual predication, including through tasking informants, and allow agents to use race as a factor in investigations.38
In fact, the informant in Fazaga is not the only former insider who has acknowledged taking part in unrestrained, sweeping investigations of Muslim communities. Terry Albury, who served for sixteen years in the FBI in the San Francisco Bay Area and Minneapolis, described at length to a reporter how he and other agents routinely surveilled Muslim institutions, failed to end investigations despite finding no threat, and pressured people into becoming informants.39 Albury eventually leaked FBI documents to the media because, he said: “There is this mythology surrounding the war on terrorism . . . that has given agents the power to ruin the lives of completely innocent people based solely on what part of the world they came from, or what religion they practice, or the color of their skin. And I did that . . . .”40
So quite apart from its effect on state secrets doctrine, the Fazaga litigation matters because it offers a rare shot at accountability. The scope of FBI counterterrorism practices has stakes not just for Muslim communities but also for others increasingly subject to the expanded focus on “domestic terrorism.”41 For instance, some have challenged the FBI’s use of informants to infiltrate antigovernment militias as entrapment.42 Black activists protesting police violence, Indigenous activists resisting oil pipelines, and immigration activists, among others, have faced FBI surveillance.43 Cases like Fazaga matter not because they question the conduct of individual intelligence operatives but because they contest the manner in which federal security agencies identify threats and conduct surveillance, especially with respect to racial and religious minorities.
While allowing the Fazaga plaintiffs’ claims to survive another day, the Supreme Court’s decision hobbles other civil lawsuits contesting unlawful surveillance. One reason is that plaintiffs in most cases, unlike Fazaga, depend on information in the government’s possession to prove that unlawful surveillance has occurred.44 Most cases don’t have the benefit of a whistleblower willing to testify to the sprawling surveillance he has conducted or witnesses who know for sure that they were surveilled. Thus, for most cases, the holding that FISA doesn’t displace the state secrets privilege prevents litigants from accessing evidence they need to demonstrate standing and establish the elements of their prima facie case.45
A second reason for concern is that several Justices expressed skepticism at the oral argument about the Fazaga plaintiffs’ core contention: that the version of the state secrets privilege at issue under United States v. Reynolds46 allows only for the exclusion of privileged evidence from a case, rather than the wholesale dismissal of a case.47 The plaintiffs argue that there are two distinct versions of the state secrets privilege.48 While one version can bar litigation altogether where the very subject matter of a lawsuit implicates state secrets, such as in disputes over government contracts,49 the more common version (Reynolds) results in continuation of the litigation, but with the privileged evidence simply excluded.50 The Fazaga plaintiffs argue that only the second version of state secrets is at issue in their case and that the litigation should continue because they can prove the illegality of surveillance with nonprivileged information, such as the informant’s own statements and recordings.51 As such, they are not seeking any classified evidence to prove their claims.52
The problem is that the government argues that it cannot defend itself against the discrimination claims without revealing the real reasons for, and targets of, the FBI investigation.53 If a court agrees that the government’s evidence is privileged, the question is whether it can dismiss the case entirely in anticipation of the government’s professed inability to mount a full defense or whether it should allow the litigation to proceed without that evidence.54 Unfortunately, several appellate courts have dismissed cases in such circumstances, despite the Supreme Court’s differentiation of the two privileges and a long history of courts previously treating the narrower privilege as resulting only in the exclusion of evidence.55
Thus, absent intervention by the Court, lower courts will continue to dismiss legal challenges to surveillance, torture, and other human rights violations at an early stage where the government argues that the need to protect state secrets may hinder it from establishing a valid legal defense. At oral argument in Fazaga, several members of the Court expressed concern about letting a case go forward where privileged information might support the defense, especially where individual defendants who had no power over the privilege, like the FBI agents here, would arguably suffer from the exclusion of the government’s evidence.56
Only Justice Gorsuch expressed support for the plaintiffs’ position that, when the government asserts state secrets to bar evidence in its defense, it should either get to keep the material secret but accept a potential legal judgment against it, or disclose the material and defend the case.57 Justice Gorsuch noted that, as the doctrine has developed in lower courts, the government can now effectively sidestep the decision of whether to “accept[] a tort judgment [or] keep[] a secret.”58 He observed: “[I]n a world in which the national security state is growing larger every day, that’s quite a power.”59
The Fazaga Court expressly refused to decide the circumstances in which the invocation of state secrets could lead to dismissal of a case. But the sympathy toward the government’s position, alongside the Abu Zubaydah majority and concurring opinions, suggests a Court comfortable with broad counterterrorism powers, at least as they have been applied to Muslims.
II. National Security Deference
The state secrets decisions fortify a wall of prior Supreme Court decisions blocking scrutiny of national security activities. I agree with Chesney’s conclusion that these decisions will further restrain efforts to “enforce legal boundaries on national security activities.”60 But that is not all. The increasing deference toward national security conduct especially matters because of the Court’s selectively expansive interpretation of what constitutes national security and its increasing willingness to limit executive power outside the national security domain as defined by the Court.
Although the Court ruled against the Bush Administration in several post-9/11 cases involving the detention of terrorism suspects,61 since then it has nearly always deferred to the executive branch when the latter invokes national security.62 In these cases, the Court recites both formal and functional reasons to reject rigorous review, arguing that the Constitution allocates foreign relations and national security judgments to the “political branches” or that judges lack the competence to second-guess executive judgments. This “national security deference” operates at three levels: sometimes the Court bars judicial review of legal challenges altogether,63 sometimes it reviews cases but under an especially lenient legal standard,64 and sometimes it defers to the government’s factual claims even while claiming to apply a conventional legal test.65
A. Expanding National Security in Rolling Back Bivens
Outside the state secrets decisions, the Court has most recently doubled down on national security deference in several cases that gut the ability to sue federal officials for damages for constitutional violations (Bivens66 claims). Five years ago, the Court invoked national security deference to prohibit Muslim immigrants detained after 9/11 from suing high-level government officials for harsh and discriminatory conditions of confinement.67 Two years ago, the Court refused to allow a Bivens claim against a Border Patrol agent who shot a fifteen-year-old Mexican boy across the U.S.-Mexico border because, it said, the conduct of border agents “unquestionably has national security implications.”68 This past Term, in Egbert v. Boule,69 the Court went still further. It precluded a U.S. citizen from suing a border agent for excessive force allegedly used against him on his own property within U.S. borders and expressly forbade constitutional damages claims against any Border Patrol agent.70 The Court declared: “Because ‘[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention,’ we reaffirm that a Bivens cause of action may not lie where, as here, national security is at issue.”71
These decisions come close to eviscerating Bivens, preventing plaintiffs in a variety of contexts from suing federal officials for damages for constitutional violations. Egbert creates an almost impossible standard for litigants to meet to maintain a Bivens action by holding that, as long as there is “[e]ven a single sound reason” to think that Congress might be better placed than a court to decide whether to create a damages remedy, a court should refuse the action.72 That reasoning would seem to preclude Bivens claims well beyond the context of border enforcement or national security, because surely anyone with any legal background can conjecture some reason that Congress might better decide the question.
In the process of gutting Bivens, the Court also applied a loose understanding of “national security” that threatens to expand the range of factual scenarios that might trigger national security deference, even beyond Bivens. Egbert, in particular, involved neither terrorism, nor diplomatic conflicts, nor intelligence or military matters traditionally defined as national security. In characterizing all legal disputes involving border agents as related to national security, Egbert made two moves. First, it equated the agency’s mission of stopping the illegal entry of people and goods with national security.73 Second, it applied deference at the wholesale level to all the agency’s activities, rather than the facts of any particular dispute.74
But consider for a moment the size and scope of Border Patrol’s activities. It is one of the nation’s largest law enforcement agencies, with over 20,000 agents,75 many of whom work well inside U.S. borders.76 The Trump Administration deployed the Border Patrol Tactical Unit to clamp down on protests against police violence in Portland, surveil the funeral of George Floyd in Texas, and assist immigration agents with arresting undocumented people in sanctuary cities.77 In the vast border regions near Canada and Mexico, Border Patrol agents frequently conduct joint operations with local and state police, and a Border Patrol sharpshooter killed the school gunman in Uvalde, a town seventy-five miles from the Mexico border.78 This surveillance and policing of undocumented people and those protesting police brutality primarily targets Black and Brown communities already racialized as threats to public safety.79 By ruling out Bivens suits against any Border Patrol agent on the notion that the agency’s mission relates to national security, the Court threatens to extend the deference accorded to “national security” to wide swaths of law enforcement activities, with a particular impact on people of color.
B. Selective Deference to Executive Power
While expansive in that respect, the Court’s protection for executive power is notably selective. The Court’s support for national security deference stands in marked contrast to its curtailment of administrative authority in other areas of social and economic regulation. Just months before Abu Zubaydah and Fazaga, the Court undercut the Biden Administration’s efforts to halt evictions during the pandemic80 and impose a vaccine requirement on employers.81 Shortly thereafter, it hampered the Administration’s ability to address climate change.82 In these cases, the Court announced a new (or reformulated) “major questions” doctrine that would require a clear statement from Congress before interpreting a statute to authorize an agency to regulate in an area of broad “economic and political significance.”83 Although all three cases stemmed from crises with exceedingly high stakes for human life — the pandemic and climate change — the Court imposed sharp limits on the Executive’s power to respond.84
As it stands, the Court’s selective deference enables the government to act against traditional national security targets (whether states or people racialized as terrorists, illegal immigrants, or other foreign threats) but limits its ability to address urgent and unprecedented social and economic problems.85 This is despite the fact that several oft-cited functional reasons for national security deference — such as the scale of threats or the need for speed or flexibility in responding to them —arguably apply to climate change and fast-moving pandemics.86
This selective deference to the executive branch incentivizes administrations (especially Democratic ones) to define a greater range of problems as emergencies and invoke national security powers to address them, with all the attendant risks of that approach.87 Since the 1980s and especially since the end of the Cold War, scholars and activists have pushed for wider understandings of “security” that decenter military affairs and specifically include public health and environmental threats.88 An administration granted broad deference on national security issues but constrained from regulating in other areas will be tempted to invoke security if it cannot enact its policy agenda through Congress.89
Rather than license these wider invocations of security, however, the Court is likely to double down on national security deference but restrict its definition of security to protect the Court’s broader deregulatory agenda. With respect to new threats, like pandemics or climate change, the Court might once again intone old warnings that “national-security concerns must not become a talisman used to ward off inconvenient claims — a ‘label’ used to ‘cover a multitude of sins.’”90 Ironically, while national security deference empowers the executive branch by limiting court review, the Court’s power to decide what counts as security ultimately empowers the Court itself.
The old warnings about the threat of broad national security invocations are right, whether applied to traditional invocations of security or the new ones favored by progressives.91 What is problematic, however, is the Court’s selective expansion and constriction of executive power to allow harsh law enforcement and security actions on the one hand while disabling administrative authority to solve social and economic problems on the other. Within the context of the Supreme Court’s recent rulings, Abu Zubaydah and Fazaga do not just signify a status quo approach to state secrets but a broader pattern of licensing national security agencies’ overreach while undercutting the administrative state.
* William W. and Gertrude H. Saunders Professor of Law, Stanford Law School. I would like to thank Ahilan Arulanantham, Jennifer Chacón, Liza Goitein, Leah Litman, and Patrick Toomey for their feedback on earlier drafts; Marisa Lowe for excellent research assistance; and the editors of the Harvard Law Review for detailed, careful editing.