Yassir Fazaga and Zayn al-Abidin Muhammad Husayn are strikingly different people. Fazaga is a well-respected American imam whose mosque in southern California became the target for a muscle-bound FBI informant posing as a personal trainer determined to find a congregant who wanted to bring armed jihad to the United States.1 Husayn — better known as “Abu Zubaydah” — was born in Saudi Arabia and is currently held as an enemy combatant at Guantanamo Bay, famous both for his role facilitating the recruitment and training of would-be mujahideen in Afghanistan and for suffering extensive waterboarding (among other things) while in CIA custody.2 But Fazaga and Abu Zubaydah have this in common: both pursued civil litigation concerning the legality of the U.S. government’s national security activities relating to terrorism, both encountered the potentially fatal obstacle known as the state secrets privilege, and both were before the Supreme Court during the October 2021 Term as a result.3
Supreme Court cases touching on the privilege are rare, and to see two taken up at once was remarkable.4 The privilege enables the government to foreclose discovery or usage of information that might be critical to a lawsuit, and in some instances can result in outright dismissal of a case.5 These are draconian consequences for private litigants who may have legitimate claims — including claims against the government itself. In this sense, the privilege sits at the heart of a dilemma. On one hand, the United States aspires to the rule of law, with an adversarial system of civil litigation and judicial review playing critical roles in the pursuit of that aspiration. On the other hand, the United States maintains an array of national security enterprises — including military, diplomatic, and intelligence activities and agencies — that depend for their efficacy to some extent on the preservation of secrecy.6 These two broad interests come into conflict when someone pursues litigation for redress of alleged harms committed by government agents in the course of national security activities.7 Our system is chock full of doctrines and devices that mediate this conflict.8 It is fair to say that they tilt, on the whole, decidedly in favor of preserving secrecy. The state secrets privilege is exhibit A for that proposition.
To be sure, civil suits are not the only mechanisms through which to pursue and encourage legal compliance in the national security setting. Other important mechanisms include internal safeguards of the executive branch itself (including ex ante and ex post review by general counsel offices, inspectors general, interagency committees, and specialized agencies);9 oversight from congressional committees;10 and leaks to the media (whether from whistleblowers or rivals) that might galvanize public opinion (and thus also the aforementioned executive and legislative mechanisms).11 But even at their best, there is something missing from these devices in comparison to the prospect of a lawsuit that results in a judgment. Perhaps because of the centrality of courts and litigation in our culture and conscience, a judgment of wrongdoing in court arguably has the potential to land louder, to have greater demonstrative and cathartic effect. Doctrines that tend to foreclose this prospect may be necessary, but they should receive recurring scrutiny and retailoring in order to improve the chances that such harsh effects are sufficiently justified in light of ever-evolving technological, cultural, and strategic circumstances, not to mention lessons learned from experience. The two cases before the Court last Term — United States v. Husayn (Zubaydah)12 and FBI v. Fazaga13 — were opportunities for just such a thoughtful reconsideration, but neither ruling delivered on this potential.
Zubaydah was particularly well positioned for impact. The case presented the question whether an erstwhile state secret might lose its privileged status altogether, against the government’s wishes, due to the ubiquity of public knowledge about the facts in question.14 Put another way: Should the government really continue to reap the benefits of the privilege (including, in some cases, the ability to fend off litigation altogether, regardless of the merits of a person’s claims) where everyone who cares about the matter knows full well what happened, based simply on a stubborn refusal by the government to own up to the matter in formal terms? In a world in which information about classified matters leaks with regularity, and where unleaked secrets in any event become public thanks to the constantly expanding utility of open-source intelligence,15 this question has long loomed large.
It is not surprising, perhaps, that the Court declined this chance to open the door wider for civil suits against the government for its national security activities, rejecting the notion of de facto waivers of the privilege. But what is surprising are the various doctrinal confusions that the Court introduced into the privilege’s doctrinal framework — quite unnecessarily — in the course of reaching this conclusion. Given how rare the Court’s interventions relating to the privilege have been, it is a shame that this one will leave the doctrinal details less, rather than more, clear.
Fazaga did at least settle an important question relating to the state secrets privilege: whether Congress had preempted the privilege in a narrow but potentially impactful way when it created section 106 of the Foreign Intelligence Surveillance Act of 197816 (FISA).17 The plain language of section 106 unquestionably covers the situation in which the government proposes to use FISA-derived evidence at trial and defendants move to suppress it on the ground that it was obtained illegally. Could section 106 do the same for a civil plaintiff suing the government for allegedly illegal electronic-surveillance activity, though? If so, section 106 might well turn out to be a font of litigation of a rare sort, opening the door to lawsuits contesting foreign-intelligence collection activities coming within FISA’s purview. But the Supreme Court was having none of it; with unanimity but without a compelling argument, the Court slammed the door on such arguments.18
Taken together, Zubaydah and Fazaga were significant victories for the government. Those interested in vigorous enforcement of the legal boundaries governing America’s national security activities are left to ponder alternatives. One option is to pursue expansion or enhancement of the many nonjudicial mechanisms of oversight and compliance associated with national security activities. Another is to revive the currently moribund project of statutory reform of the privilege itself.
Part I opens with a thumbnail sketch of the origins and evolution of the privilege, placing the new rulings in context by tracing the privilege’s roots from the early Republic forward. This overview provides critical context for all that follows. Part II then explores Zubaydah, highlighting the extraordinary underlying facts of that case, the unlikely procedural path that led to the Court’s decision, and the subtle but important problems with the Court’s analysis. Part III turns to Fazaga, bringing the reader through the strange world of “Operation Flex,” through the complexities of FISA’s potential intersection with the privilege, and on to the Court’s unanimous — yet quite debatable — analysis. Part IV concludes with observations about the implications of these decisions for the future of efforts to ensure that the nation’s national security activities are subject to, not immune from, legal constraint.
* Dean and James A. Baker III Chair in the Rule of Law and World Affairs, University of Texas School of Law.