Can the Government Hide Its Misdeeds as ‘State Secrets’?
The terrorist attacks of September 11 and the government exploitation of them to expand civilian surveillance continue to cast a shadow over our civil liberties. Now, the Supreme Court is considering whether officials can escape accountability for violating people’s rights by claiming relevant information is too secret to be considered. The case, FBI v. Fazaga, involves surveillance of Muslim-Americans in the years after the attacks, but it could determine the protections people will enjoy as the powers-that-be move on to finding other supposed domestic enemies in our midst.
As the ACLU describes the case, it all started with FBI surveillance of mosques in Orange County, California, during an operation in 2006 and 2007. Sheik Yassir Fazaga and two congregants sued the feds for singling them out by planting audio recording devices and conducting electronic surveillance of homes, mosques, and businesses.
“The District Court for the Southern District of California dismissed their claims that the FBI unlawfully targeted Muslim community members for surveillance based on their religion, accepting the FBI’s argument that further proceedings could reveal state secrets,” the ACLU notes. “The Ninth Circuit Court of Appeals disagreed, instructing the district court to consider the plaintiffs’ religious discrimination claims under procedures mandated by Congress in the Foreign Intelligence Surveillance Act (FISA), which specifies how courts should handle sensitive evidence in cases involving surveillance conducted for national security purposes.”
The FBI appealed, which lands us before the United States Supreme Court with the justices set to determine not whether the plaintiffs’ rights were violated, but whether the courts should be allowed access to information that would permit them to proceed with the case. The government argues, once again, that some matters are so sensitive that the courts shouldn’t even be able to consider whether the government acted with respect for constitutionally protections.
State-secrets privilege, as the doctrine is known, has a long and sketchy history, evolving from bad official behavior after a 1948 plane crash that killed several civilian observers. When the observers’ widows sued in United States v. Reynolds, the government argued that information about the plane was too super-secret to be revealed in court. The Supreme Court agreed that some things are too sensitive to be used in legal proceedings and gave the exec
Article from Reason.com