Unaddressed Issues from SCOTUS Oral Argument on Fazaga

PPSA Brief: “Don’t Allow Seventh Amendment to Destroy First and Fourth Amendment rights"

In the recent Supreme Court oral argument for FBI v. Fazaga, most of the questions from the Justices focused on the technical relationship between the state-secrets privilege – which allows the government to withhold classified information from a trial – and the Foreign Intelligence Surveillance Act (FISA).
 
The Justices showed considerable skepticism about the U.S. 9th Circuit Court of Appeals ruling that held that Section 1806(f) of FISA permits a federal district judge to privately review information from surveillance. Most of the questions centered around this statute, while leaving unaddressed many of the monumental constitutional concerns. But as we’ve explained before, at heart in this case is whether the courthouse door can remain open in any fashion to injured citizens once the government invokes the state-secrets doctrine to hide evidence of potential constitutional violations by that same government and its agents.
 
In their deliberations, PPSA hopes the Justices return to the core issues set out in our amicus brief, where we explained that this “case, at bottom, asks how parties whose constitutional rights have been violated by the government can vindicate those rights if the government invokes the state-secrets doctrine.”
 
Our brief notes the irony of the FBI agents claiming that the government’s state-secret doctrine would deprive them of their Seventh Amendment rights as well. In oral argument, Justice Samuel Alito criticized the idea that a judge could review secret evidence and find against the FBI and its agents without their attorneys being present. “Isn’t that the Star Chamber?” he asked.
 
Justice Amy Coney Barrett also briefly touched upon the constitutional concerns raised by use of the state-secrets doctrine to fully suppress any review of supposedly sensitive evidence. But she too was more concerned about the impact that allowing limited the access to such evidence might have on the constitutional rights of the defendants, ignoring the far greater impact denying access has on the constitutional rights of the plaintiffs. She expressed concern that the individual defendants would be forced to “just go in with their hands behind their back” and would be left “sitting ducks.”
 
But both justices, however, ignored that the disabling of rights works both ways.
 
Justice Barrett was correctly concerned about the impact of the state-secrets doctrine on defendant’s right to a jury trial. But she should have also focused on the far greater impact that doctrine has on the constitutional rights of the plaintiffs – both to have a jury trial of their claims, as well as to vindicate the underlying alleged violations of their First and Fourth Amendment rights. As PPSA demonstrated in its amicus brief to the Court, once the state-secrets doctrine is invoked, plaintiffs are also in a bind and their rights are often sacrificed to the supposedly greater constitutional claims of defendants – the very persons who allegedly violated the constitution in the first place.
 
In such cases, individual FBI agents invoke their Seventh Amendment right to a jury trial and since the evidence is deemed too sensitive to be shared with a jury, the government succeeds in short circuiting the trial and closing the right of American citizens to seek redress for violations of their rights.
 
As we wrote: “In both instances of claimed constitutional violations, the responsibility must be with the government to provide a remedy. Whether through the Foreign Intelligence Surveillance Act (FISA) procedures or otherwise, constitutional rights must carry a remedy or else they are meaningless.”
 
The current application of the state-secrets privilege combined with the invocation of the Seventh Amendment allows the government to completely disregard the First and Fourth Amendment rights of the plaintiffs. PPSA argued that whenever there is such an infringed right, there must be a remedy.
 
PPSA noted a variety of ways to protect the interests of defendant FBI agents against the seemingly self-serving invocation of the state-secrets doctrine by the government. At a minimum, the cost of such a tactic should be borne by the government, not by either plaintiffs or defendants, with indemnification of defendants if necessary. 
 
Alternatively, a trial could be had with security-cleared counsel and jurors or with limited restrictions on what the jury could hear, either of which preserves constitutional protections better than having no trial at all.
 
“To hold otherwise, as the federal respondents urge this Court to do, would completely close the courthouse door to Fazaga and others like him whenever national security is implicated. But that would allow the Seventh Amendment to destroy the First or Fourth, or both.”