Amicus Curiae Brief — Federal Bureau of Investigation, et al., Petitioners v. Yassir Fazaga, et al.

Supreme Court briefSep 28, 2021

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No. 20-828

IN THE

Supreme Court of the United States

FEDERAL BUREAU OF INVESTIGATION, ET AL.,

Petitioners,

YASSIR FAZAGA, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF CONSTITUTIONAL ACCOUNTABILITY

CENTER AS AMICUS CURIAE IN

SUPPORT OF RESPONDENTS

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

September 28, 2021

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................

INTEREST OF AMICUS CURIAE .......................

INTRODUCTION AND SUMMARY

OF ARGUMENT.................................................

ARGUMENT ..........................................................

The State Secrets Privilege Is Not a

Product of Constitutional Analysis

but of Federal Common Law ......................

A. Nineteenth-century precursors to

the state secrets privilege invoked

English common law and general

notions of public policy .........................

B. When a privilege concerning state

secrets began to emerge in the

twentieth century, it was based

on federal common law authority to

shape evidentiary rules in service

of public policy ......................................

C. The standards governing the state

secrets privilege were borrowed, as

a matter of federal common law,

from contemporary developments in

the United Kingdom .............................

II. The Government Mischaracterizes the

Origins and Foundation of the Privilege ...

A. Ambiguous episodes in the early

Republic have no clear connection

to the state secrets privilege ...........

(i)

B. Any relationship between

Article II and the state secrets

privilege remains undefined ............

III. Because the Question Here Implicates

the Powers of All Three Branches of

Government, the Analysis Should Not

Be Slanted in Favor of the Executive ........

CONCLUSION.......................................................

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Bank Line v. United States,

163 F.2d 133 (2d Cir. 1947) ........................

Beatson v. Skene,

157 Eng. Rep. 1415 (Exch. Div. 1860) ........

Chicago & S. Air Lines v. Waterman S.S.

Corp., 333 U.S. 103 (1948) ..........................

Cohens v. Virginia,

19 U.S. 264 (1821) .......................................

Cresmer v. United States,

9 F.R.D. 203 (E.D.N.Y. 1949) .....................

Duncan v. Cammell, Laird & Co.,

[1942] A.C. 624 (H.L.) ..................... 5, 12, 16, 17

El-Masri v. United States,

479 F.3d 296 (4th Cir. 2007) ..................... 25, 26

Firth Sterling Steel Co. v. Bethlehem

Steel Co.,

199 F. 353 (E.D. Pa. 1912) .................... 4, 11, 12

Gen. Dynamics Corp. v. United States,

563 U.S. 478 (2011) ................................. passim

In re NSA Telecommunications Recs. Litig.,

564 F. Supp. 2d 1109

(N.D. Cal. 2008)................................... 14, 15, 27

In re United States,

872 F.2d 472 (D.C. Cir. 1989) .....................

TABLE OF AUTHORITIES – cont’d

Page(s)

Marbury v. Madison,

5 U.S. 137 (1803) ................................. 21, 22, 26

Martin v. Mott,

25 U.S. 19 (1827) .........................................

O’Neill v. United States,

79 F. Supp. 827 (E.D. Pa. 1948) ............... 11, 13

Pollen v. Ford Instrument Co.,

26 F. Supp. 583 (E.D.N.Y. 1939) ................

Pollen v. United States,

85 Ct. Cl. 673 (1937) ................................. 11, 12

Rex v. Watson,

2 Starkie’s C. 148 (K.B. 1817) ....................

Robinson v. United States,

50 Ct. Cl. 159 (1915) ...................................

Tenet v. Doe,

544 U.S. 1 (2005) ................................... 4, 5, 8, 9

Totten v. United States,

92 U.S. 105 (1875) ................................... 4, 9, 10

Trump v. Mazars USA, LLP,

140 S. Ct. 2019 (2020) .............................. 22, 23

United States ex rel. Touhy v. Ragen,

340 U.S. 462 (1951) .....................................

United States v. Burr,

25 F. Cas. 187 (C.C.D. Va. 1807) .............. 19, 20

TABLE OF AUTHORITIES – cont’d

Page(s)

United States v. Nixon,

418 U.S. 683 (1974) ............................... 5, 24, 25

United States v. Reynolds,

345 U.S. 1 (1953) ..................................... passim

Constitutional Provisions and Legislative Materials

1 Annals of Cong. (1789)

(Joseph Gales ed., 1834) .............................

U.S. Const. art. III, § 2 ...................................

Books, Articles, and Other Authorities

Raoul Berger & Abe Krash, Government

Immunity from Discovery,

59 Yale L.J. 1451 (1950) .............................

Robert M. Chesney, State Secrets and the

Limits of National Security Litigation,

75 Geo. Wash. L. Rev. 1249 (2007) ........ passim

The Federalist No. 78 (Alexander Hamilton)

(Clinton Rossiter ed., 1961) ........................

Amanda Frost, The State Secrets Privilege

and Separation of Powers,

75 Fordham L. Rev. 1931 (2007) .............. 26, 27

Simon Greenleaf, A Treatise on the Law

of Evidence (7th ed. 1854) ........................... 8, 22

TABLE OF AUTHORITIES – cont’d

Page(s)

25 Op. Att’y Gen. 326 (1905)..........................

20 Op. O.L.C. 253 (1996)................................

Sudha Setty, Litigating Secrets: Comparative

Perspectives on the State Secrets Privilege,

75 Brook. L. Rev. 201 (2009) .................. passim

Abraham D. Sofaer, War, Foreign Affairs

and Constitutional Power (1976)................

Thomas Starkie, A Practical Treatise on

the Law of Evidence (7th Am ed. 1842)...... 8, 23

Anthony John Trenga, What Judges Say

and Do in Deciding National Security

Cases: The Example of the State Secrets

Privilege,

9 Harv. Nat’l Sec. J. 1 (2018) .............. 11, 15, 22

William G. Weaver & Robert M. Pallitto,

State Secrets and Executive Power,

120 Pol. Sci. Q. 85 (2005) .................... 15, 17, 18

The Writings of Thomas Jefferson

(Andrew Lipscomb ed., 1903) .....................

James Zagel, The State Secrets Privilege,

50 Minn. L. Rev. 875 (1966) .......................

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank, public interest law firm, and action center

dedicated to fulfilling the progressive promise of the

Constitution’s text and history. CAC works in our

courts, through our government, and with legal scholars to improve understanding of the Constitution and

preserve the rights and freedoms it guarantees. CAC

has a strong interest in ensuring meaningful access to

the courts, in accordance with constitutional text and

history, and therefore has an interest in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

According to Yassir Fazaga and the other plaintiffs in this case, the FBI used an informant to gather

information about them and make surreptitious recordings of their private conversations—all because of

their religion. In response to their lawsuit alleging violations of the Constitution and the Foreign Intelligence Surveillance Act (FISA), the government tried to

invoke the state secrets privilege to have the case dismissed, but the court below held that the privilege was

displaced here by FISA procedures allowing judges to

review materials concerning electronic surveillance

in camera to determine the lawfulness of the surveillance. Disagreeing with that conclusion, the government attempts to buttress its statutory arguments by

1 The parties have consented to the filing of this brief.

Under

Rule 37.6 of the Rules of this Court, amicus states that no counsel

for a party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus

or its counsel made a monetary contribution to its preparation or

submission.

invoking constitutional principles that it says should

control the Act’s interpretation. This effort to tilt the

interpretive scales in the government’s favor should be

rejected.

According to the government, the state secrets

privilege “is rooted in the Executive’s Art[icle] II duties

to protect the national security and conduct foreign affairs.” Pet. Br. 3. Because of that “constitutional foundation,” the government says, this Court should not interpret FISA here in the same way that statutes are

normally construed—instead, it should adopt a presumption against displacement of the state secrets

privilege by requiring a “clear statement . . . that Congress intended to bring about such a startling change

in the Executive’s authority to protect national-security information.” Id. at 3, 47. In other words, according to the government, “any ambiguity should be construed in favor of retaining the privilege.” Id. at 19.

The government’s position rests on a misleading

account of the state secrets privilege that is at odds

with the history of the privilege and this Court’s precedents. In reality, the judiciary has never grounded

the state secrets privilege in the Constitution; rather,

it developed the privilege as a matter of federal common law, using its power to devise evidentiary rules

based on its own perceptions of sound public policy. Indeed, far from representing a construction of the president’s inherent Article II authority over military and

foreign affairs, the key aspects of the state secrets privilege were drawn from twentieth-century case law in

the United Kingdom, which this Court imported

nearly wholesale into federal common law when it established the contours of the privilege in United States

v. Reynolds, 345 U.S. 1 (1953). None of this Court’s

decisions resolving state secrets questions has ever

relied on the separation of powers or inherent executive authority under the Constitution.

In addition to distorting the legal basis for the

state secrets privilege, the government also exaggerates its historical pedigree. For most of the nineteenth

century, there was no American case law recognizing

any privilege from disclosing state secrets in judicial

proceedings. See Robert M. Chesney, State Secrets

and the Limits of National Security Litigation, 75 Geo.

Wash. L. Rev. 1249, 1273-77 (2007). While the government claims that episodes in the early Republic indicate a recognition of the executive’s power to withhold

sensitive information from disclosure, those incidents—each of which is deeply ambiguous—at best

represent early expressions of a general concept of executive privilege, rooted in concerns over confidentiality in government communications. These episodes

have little if any bearing on the state secrets privilege

and provide no evidence of a constitutional foundation

for that doctrine.

Rather than stemming from principles widely accepted in the early Republic, the concept of an evidentiary privilege protecting state secrets from disclosure

in court proceedings was a later innovation that developed slowly in American jurisprudence. And far from

reflecting constitutional imperatives, the privilege was

justified, at every step of its development, exclusively

by the courts’ common law authority to shape evidentiary rules in service of public policy.

The idea of a state secrets privilege entered American legal thought through the works of nineteenthcentury treatise writers, who drew on diverse strands

of English precedent in an effort to “rationalize and

systematize the body of common law evidentiary

rules.” Id. at 1270. When this Court first endorsed a

bar against the judicial enforcement of espionage

agreements in Totten v. United States, 92 U.S. 105

(1875), it similarly relied on analogies to common law

privileges shielding “confidential” information from

disclosure, as well as on general notions of “public policy,” id. at 107, without referencing constitutional considerations of any kind. See Gen. Dynamics Corp. v.

United States, 563 U.S. 478, 485 (2011) (describing

Totten as a use of “our common-law authority to fashion contractual remedies”).

Notwithstanding Totten, which involved a “unique

and categorical” rule barring certain types of suits entirely, Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005), it was not

until the early twentieth century that “[t]he core of a

distinctive ‘state secrets’ privilege, focused on securityrelated matters, . . . beg[a]n to emerge,” Chesney, supra, at 1281. Over the first half of that century, a number of lower court decisions recognized an evidentiary

privilege against the public disclosure of government

materials on the ground that their release would harm

the public interest. Throughout this period, the

emerging state secrets privilege continued to be understood as a common law evidentiary doctrine, not a matter of constitutional law, supported by citations to

treatises, pragmatic arguments from necessity, and

vague invocations of “public policy.” Firth Sterling

Steel Co. v. Bethlehem Steel Co., 199 F. 353, 355 (E.D.

Pa. 1912).

Before Reynolds, state secrets jurisprudence remained “limited and vague, and failed to set forth a

standardized doctrine by which privilege claims ought

to be evaluated.” Sudha Setty, Litigating Secrets:

Comparative Perspectives on the State Secrets Privilege, 75 Brook. L. Rev. 201, 232 (2009). When this

Court eventually fleshed out the contours of the state

secrets privilege and outlined a process to use in administering it, this Court acknowledged that judicial

experience with the privilege had been “limited in this

country.” Reynolds, 345 U.S. at 7. To fill the gap, this

Court turned to contemporary developments in the

United Kingdom, largely adopting the substantive and

procedural standards for the privilege that had been

recently prescribed by the House of Lords in Duncan

v. Cammell, Laird & Co., [1942] A.C. 624 (H.L.).

Critically, Reynolds derived none of its new standards from the separation of powers or the president’s

Article II authority. Indeed, this Court expressly disclaimed any reliance on constitutional principles when

fashioning these standards—despite the government’s

urging of an “inherent executive power” under the

Constitution to withhold materials from the judiciary.

See 345 U.S. at 6 & n.9. Instead, Reynolds “decided a

purely evidentiary dispute by applying evidentiary

rules.” Gen. Dynamics, 563 U.S. at 485. As in prior

decisions concerning the state secrets privilege, this

Court exercised its authority under federal common

law to recognize evidentiary privileges based on general assessments of good public policy.

Reynolds remains “the only instance in which

[this] Court has articulated a standard for the state

secrets privilege.” Setty, supra, at 208; cf. Tenet, 544

U.S. at 8-9 (applying the Totten bar while distinguishing it from the Reynolds privilege); Gen. Dynamics,

563 U.S. at 485-87 (same). To be sure, passages in

United States v. Nixon, 418 U.S. 683 (1974), a case that

did not concern state secrets, may suggest that Article II calls for some type of evidentiary privilege enabling the president to safeguard military and diplomatic secrets from public disclosure. “Plainly, however,” whatever “core” of the state secrets privilege

might be constitutionally compelled “does not account

for the full scope of the privilege as it has come to be

understood.” Chesney, supra, at 1309. None of the

specific components of the privilege articulated in

Reynolds has ever been linked to constitutional imperatives—including the rules concerning in camera review of allegedly privileged material.

In light of this history, the government is wildly

off base to portray the state secrets privilege as “firmly

rooted in the Constitution,” with its common law origins relegated to an afterthought. Pet. Br. 42. Far

from being the product of constitutional analysis, the

standards governing the state secrets privilege were

patterned on foreign sources in the course of exercising

the courts’ authority to craft evidentiary rules under

federal common law, without any consideration of Article II or the separation of powers.

There is no warrant, therefore, for placing an interpretive thumb on the scale in the government’s favor here by imposing an unusual requirement that

Congress be “unmistakably clear” in displacing the

state secrets privilege. Pet. Br. 16 (quoting Pet. App.

110a (Bumatay, J., dissenting from the denial of rehearing en banc)). Instead, this case should be resolved just like any other statutory dispute in which a

party argues that Congress has supplanted federal

common law. Under that standard, for the reasons explained by Respondents, the decision below should be

affirmed.

ARGUMENT

The State Secrets Privilege Is Not a Product

of Constitutional Analysis but of Federal

Common Law.

In the government’s telling, the state secrets privilege is “inherent in the constitutional design” and has

been “acknowledged since our Nation’s founding.” Pet.

Br. 46 (quoting Pet. App. 134a (Bumatay, J., dissenting from denial of rehearing en banc)). In reality, the

standards governing the privilege “emerged during the

mid-twentieth century,” Chesney, supra, at 1271, and

were fashioned as a matter of federal common law

without reference to the Constitution. Constitutional

reasoning concerning executive authority and the separation of powers has played no role at any point in the

long development of the state secrets privilege.

A. Nineteenth-century precursors to the

state secrets privilege invoked English

common law and general notions of

public policy.

Although the government cites episodes from the

early Republic to claim that the state secrets privilege

has been “acknowledged since our Nation’s founding,”

Pet. Br. 46 (quoting Pet. App. 134a), those episodes

have no clear relationship to the privilege. See infra

Part II. Until the late nineteenth century, there was

no American case law recognizing any “privilege

against court-ordered disclosure of state and military

secrets.” Gen. Dynamics, 563 U.S. at 484.

Instead, the concept of such a privilege entered

American legal thought in the mid–nineteenth century, thanks to “treatise writers actively seeking to rationalize and systematize the body of common law evidentiary rules.” Chesney, supra, at 1270. Given “the

absence of on-point case law in the United States,”

these authors “relied extensively on English precedent.” Id. at 1273. They did not root their discussions

in the American separation of powers or the president’s constitutional authority. Rather, citing English

decisions and general notions of public policy, these

authors combined “disparate threads” under “the umbrella concept of a multifaceted ‘public interest’ privilege, some aspects of which were referred to under the

subheading of ‘state secrets.’” Id. at 1270-71.

For example, Thomas Starkie’s English treatise on

evidence—subsequently published and widely influential in America—discussed the exclusion of evidence

“on grounds of public policy,” including in situations

where “disclosure might be prejudicial to the community.” 1 Thomas Starkie, A Practical Treatise on the

Law of Evidence 69, 71 (7th Am. ed. 1842). This discussion integrated “three distinct lines of English precedent” involving protections for criminal informers, for

the deliberative process, and for information kept secret “on security grounds.” Chesney, supra, at 1274;

see, e.g., Starkie, supra, at 71-72 (citing Rex v. Watson,

2 Starkie’s C. 148 (K.B. 1817), where, for public safety,

“an officer from the Tower of London could not be examined as to the accuracy of a plan of the Tower”).

Simon Greenleaf’s treatise, “arguably the first successful volume of this nature to be written from an explicitly American perspective,” Chesney, supra, at

1276, likewise discussed evidence “excluded from motives of public policy,” including “secrets of State . . . the

disclosure of which would be prejudicial to the public

interest,” 1 Simon Greenleaf, A Treatise on the Law of

Evidence 327 (7th ed. 1854). Greenleaf’s “secrets of

state” category encompassed a diverse range of situations not tied to military or foreign affairs, was based

primarily on English precedent, and referenced no

American constitutional law principles. See id. at 329.

While treatises propagated the idea of evidentiary

privileges tied to public safety, it was not until 1875,

in Totten, that this Court first established “a Government privilege against court-ordered disclosure of

state and military secrets.” Gen. Dynamics, 563 U.S.

at 484. Totten “preclude[d] judicial review” entirely in

cases “where success depends upon the existence of [a]

secret espionage relationship with the Government,”

Tenet, 544 U.S. at 8, essentially concluding that “some

claims against the government are simply not justiciable based on the nature of the claim being made and

the need for government secrecy,” Setty, supra, at 233.

While Totten’s “unique and categorical” bar to suit is

distinct from the more limited evidentiary privilege

recognized in later cases, Tenet, 544 U.S. at 6 n.4, it

was “a significant extension of the still-evolving concept of a state secrets privilege,” Chesney, supra, at

1278; see Gen. Dynamics, 563 U.S. at 485-86 (describing Totten as part of “our state-secrets jurisprudence”).

Totten “at no point described its holding in separation of powers or other constitutional terms.” Chesney,

supra, at 1278. “Rather, the Court simply spoke in

terms of the detrimental ‘public policy’ ramifications of

permitting lawsuits regarding unacknowledged espionage contracts to proceed,” id. at 1278-79, reasoning

that secrecy was an implied term of such contracts,

precluding “any action for their enforcement,” Totten,

92 U.S. at 107; cf. Gen. Dynamics, 563 U.S. at 490 (“As

in Totten, our refusal to enforce this contract captures

what the ex ante expectations of the parties were or

reasonably ought to have been.” (citation omitted)).

Given the secret matters involved, Totten compared the enforcement of espionage contracts to other

types of suits that could not be pursued because they

would “lead to the disclosure of matters which the law

itself regards as confidential.” Totten, 92 U.S. at 107

(citing suits that “would require a disclosure of the confidences of the confessional, or those between husband

and wife, or of communications by a client to his counsel for professional advice, or of a patient to his physician”). As with those other examples of common law

evidentiary privileges, suits to enforce espionage

agreements were prohibited for the simple reason that

exposing the relevant facts would be to the “serious

detriment of the public.” Id. “‘[P]ublic policy,’” this

Court held, “forbids the maintenance of any [such]

suit.” Gen. Dynamics, 563 U.S. at 486 (quoting Totten,

92 U.S. at 107). Totten thus “followed the British example . . . in recognizing a public-policy justification in

American law for precluding public disclosure of information on security-related grounds.” Chesney, supra,

at 1278.

In short, Totten was an exercise of the judiciary’s

“common-law authority to fashion contractual remedies in Government-contracting disputes.” Gen. Dynamics, 563 U.S. at 485; see id. at 488 (explaining that

courts may refuse, “on grounds of public policy,” to aid

an “unenforceable promise”). Totten’s “public policy”

rationale arose from that common law framework, not

from any reference to Article II or the separation of

powers. And that rationale persists today. See id. at

487 (“refusal to enforce promises contrary to public

policy . . . is not unknown to the common law, and the

traditional course is to leave the parties where they

stood”); id. at 491 (“what we promulgate today is . . . a

common-law opinion”).

When a privilege concerning state

secrets began to emerge in the

twentieth century, it was based on

federal common law authority to

shape evidentiary rules in service

of public policy.

“By the late nineteenth century, treatise writers in

the United States had begun to refer expressly to a

‘state secrets’ privilege.” Chesney, supra, at 1280. But

they were still using that term “much as the early writers had referred to a ‘public interest’ privilege: namely,

as an umbrella concept integrating cases like Totten

. . . with precedents concerning the informer’s privilege, the deliberative-process privilege, and the government-communications privilege.” Id. Only “in the

early twentieth century” did the “[t]he core of a distinctive ‘state secrets’ privilege, focused on security-related matters, . . . begin to emerge.” Id. at 1281. The

nature of the privilege remained nebulous throughout

this period, with little articulation of its standards or

procedures. But the nascent doctrine was firmly understood as a common law evidentiary principle—not

a matter of constitutional law—justified by citations to

treatises, pragmatic arguments from necessity, and

vague invocations of public policy.

Over the first half of the twentieth century, in

“fairly conclusory fashion and without extended analysis, a handful of lower courts considered what was in

substance a state secrets privilege, typically described

as a ‘military or national security privilege.’” Anthony

John Trenga, What Judges Say and Do in Deciding

National Security Cases: The Example of the State Secrets Privilege, 9 Harv. Nat’l Sec. J. 1, 12 (2018). In

the absence of any comprehensive standards or “unifying doctrine,” Setty, supra, at 234, these decisions

rested on vague invocations of “public policy,” supported by citations to treatises, English precedent, and

Totten. See Firth Sterling, 199 F. at 355 (citing those

sources for “the rule of public policy forbidding the disclosure of military secrets”); Robinson v. United States,

50 Ct. Cl. 159, 167 (1915) (“The Government is not required to answer questions or supply papers which on

the grounds of public policy it is entitled to resist.”);

Pollen v. United States, 85 Ct. Cl. 673, 679 (1937) (relying on treatises and the “many English cases” protecting “military secrets, the disclosure of which . . .

would be detrimental to the National defense”).

Courts universally understood the emerging state

secrets privilege to be a common law evidentiary doctrine. See O’Neill v. United States, 79 F. Supp. 827,

829 (E.D. Pa. 1948) (citing “the general policy of the

common law, prohibiting disclosure of state secrets the

publication of which might . . . harm the government

in its diplomatic relations, military operations or

measures for national security”); Firth Sterling, 199 F.

at 355 (stating that “at common law” the court “might,

upon grounds of public policy, strike out evidence of

this nature”). Constitutional principles were not invoked.

Indeed, when decisions of this era elaborated on

the theoretical justification for the privilege, they described it as a matter of practical necessity emanating

from a right of self-preservation intrinsic to all governments. See, e.g., Pollen, 85 Ct. Cl. at 681 (the privilege

is “predicated upon the principle of the public good and

the right of the Sovereign to maintain an efficient National defense,” which “transcends the individual interests of a private citizen”). The reasoning was pragmatic, not constitutional, and no emphasis was placed

on executive branch authority vis-à-vis the other

branches. See, e.g., Pollen v. Ford Instrument Co., 26

F. Supp. 583, 584 (E.D.N.Y. 1939) (citing “the inherent

right of self-preservation for purposes of national defense” as “a paramount government right”).

Because courts were fashioning a common law doctrine rather than discerning the executive branch’s

constitutional authority, they felt free to look to contemporary developments in foreign law for inspiration.

In Bank Line v. United States, 163 F.2d 133 (2d Cir.

1947), for instance, the court of appeals recommended

that the district court “consider the views of the English House of Lords recently expressed . . . in Duncan

v. Cammell, Laird & Co., (1942) A.C. 624, when discussing the nature of the privilege to withhold production of official documents on grounds of public interest.” Bank Line, 163 F.2d at 139.

Moreover, even when the government raised constitutional arguments in support of nondisclosure, it

did not base these arguments on the president’s military or foreign affairs powers under Article II. Rather,

the government simply claimed a broad executive privilege to withhold information of any kind from the

other branches. See O’Neill, 79 F. Supp. at 830 (describing the attorney general’s argument that under

the separation of powers he was “free to refuse disclosure of any evidence in his possession, regardless of its

character, for any reason which may seem to him sufficient” (emphasis added)); United States ex rel. Touhy

v. Ragen, 340 U.S. 462, 469 (1951) (describing the attorney general’s assertion of “a determinative power as

to whether or on what conditions . . . he may refuse to

produce government papers under his charge”); 25 Op.

Att’y Gen. 326, 331 (1905) (advising a department

head that he could decline to furnish records of his department “whenever in your judgment the production

of such papers . . . might prove prejudicial for any reason to the Government or to the public interest”).

Significantly, too, courts that recognized a state

secrets privilege in this era saw no tension between

that privilege and a judge’s in camera review of the

materials alleged to be privileged. See Cresmer v.

United States, 9 F.R.D. 203, 204 (E.D.N.Y. 1949) (“[T]o

make sure that the report in question contained no

military or service secrets which would be detrimental

to the interests of the armed forces of the United

States or to the National security, I requested counsel

to produce the report for my examination.”).

C. The standards governing the state

secrets privilege were borrowed, as a

matter of federal common law, from

contemporary developments in the

United Kingdom.

In United States v. Reynolds, 345 U.S. 1 (1953),

this Court confirmed the existence of a state secrets

privilege in the common law of evidence and for the

first time established standards to govern the administration of the privilege. Those standards were imported nearly wholesale from contemporary case law

in the United Kingdom. This Court borrowed those

standards as an exercise of federal common law authority without suggesting that any of them have any

relationship to the separation of powers or the president’s Article II authority.

Reynolds was a dispute “about the admission of evidence,” Gen. Dynamics, 563 U.S. at 485, under the

Federal Rules of Civil Procedure. Those rules authorized discovery only of materials “not privileged,” which

this Court construed as referring “to ‘privileges’ as that

term is understood in the law of evidence.” Reynolds,

345 U.S. at 6. “At the time, Congress had not yet approved the Federal Rules of Evidence, and therefore

the only ‘law of evidence’ to apply in federal court was

an amalgam of common law, local practice and statutory provisions with indefinite contours.” In re NSA

Telecommunications Recs. Litig., 564 F. Supp. 2d 1109,

1123 (N.D. Cal. 2008). Citing treatises and some of the

limited American precedent available, this Court confirmed that a privilege against revealing military and

state secrets was “well established in the law of evidence.” Reynolds, 345 U.S. at 6-7.

Beyond merely recognizing the existence of such a

privilege, Reynolds fleshed out its contours and

“adopted for the first time a methodology” for

administering it. Trenga, supra, at 13. That guidance

was sorely needed because, as this Court observed,

“[j]udicial experience with the privilege” had “been

limited in this country.” Reynolds, 345 U.S. at 7.

In confirming the existence of a state secrets privilege and defining its scope, this Court did not draw on

Article II, the separation of powers, or any other constitutional principles concerning executive authority.

Reynolds was explicit on this point: The government

asserted a “power to suppress documents” based on

“an inherent executive power which is protected in the

constitutional system of separation of power.” Id. at 6

n.9. But this Court disclaimed any reliance on constitutional considerations, finding it “unnecessary to

pass upon” these “broad propositions.” Id. at 6. Instead, Reynolds “decided a purely evidentiary dispute

by applying evidentiary rules.” Gen. Dynamics, 563

U.S. at 485.2

Having expressly “declined to address the constitutional question” raised by the government, Reynolds

simply “interpreted and applied federal common law.”

In re NSA, 564 F. Supp. 2d at 1123. But with “little

domestic doctrine to rely upon,” Setty, supra, at 22627, this Court sketched the outlines of the state secrets

privilege by turning to foreign law—specifically, contemporary standards in the United Kingdom. “English experience has been more extensive,” this Court

explained, and “the principles which control the application of the privilege emerge quite clearly from the

available precedents.” Reynolds, 345 U.S. at 7; see William G. Weaver & Robert M. Pallitto, State Secrets and

2 Reynolds did draw on constitutional principles, but not concerning Article II or the separation of powers. See 345 U.S. at 8

(analogizing to the privilege against self-incrimination secured by

the Fifth Amendment).

Executive Power, 120 Pol. Sci. Q. 85, 97 (2005) (while

American decisions had begun to distinguish the state

secrets privilege from various forms of executive privilege, “case law in the United States proved too thin a

resource to fully explain this distinction, and so [this]

Court turned to the law of the United Kingdom and

the development of the doctrine of ‘crown privilege’”).

Significantly, among the principles that Reynolds

borrowed from abroad was a cautious stance toward

in camera judicial review of materials alleged to be

privileged—an attitude not previously found in American state secrets jurisprudence. Two English decisions, “one in the 1860s and the other in the 1940s,”

were “decisive” in entrenching this principle in England, “laying the groundwork for the parameters of the

U.S. state secrets privilege as laid out in Reynolds.”

Setty, supra, at 228.

First, Beatson v. Skene held that when the head of

a department “states that in his opinion the production

of the document would be injurious to the public service, . . . the Judge ought not to compel the production

of it.” 157 Eng. Rep. 1415, 1421-22 (Exch. Div. 1860).

Notably, “[t]he court in Beatson reasoned that a contrary approach ordinarily would not be possible because, it believed, a judicial inspection ‘cannot take

place in private’ and thus necessarily would entail

public exposure of the matter in issue.” Chesney, supra, at 1280 (quoting Beatson, 157 Eng. Rep. at 1421).

That principle was fortified in Duncan v. Cammell,

Laird & Co., [1942] A.C. 624 (H.L.), in which the

House of Lords essentially ruled that “if a government

officer offers a good faith affidavit as to the need for

nondisclosure,” it should be accepted “at face value.”

Setty, supra, at 228-29. “Those who are responsible

for the national security must be the sole judges of

what the national security requires,” Duncan stated,

and so the “approved practice” was “to treat a Ministerial objection taken in proper form as conclusive,” and

“the Court should not ask to see the documents.” Duncan, A.C. 624 (quotation marks omitted). While the

decision to exclude documents remained “the decision

of the Judge,” a validly taken objection to production,

“on the ground that this would be injurious to the public interest,” was “conclusive.” Id.

This Court largely “adopted the framework” of

Duncan when setting forth the parameters of the state

secrets privilege in Reynolds. Weaver & Pallitto, supra, at 98; see Reynolds, 345 U.S. at 7-8 & nn.15, 20-22.

This Court made an important change, however, regarding the one aspect of the privilege that it said “presents real difficulty,” namely, the rule that a court determining whether the privilege applies should “do so

without forcing a disclosure of the very thing the privilege is designed to protect.” Reynolds, 345 U.S. at 8;

see id. at 8 n.22 (citing Duncan for this principle). Under Reynolds, an official’s assertion of the state secrets

privilege is not “conclusive.” Duncan, A.C. 624. Instead, drawing on judicial experience with the privilege against self-incrimination, this Court fashioned a

“like formula of compromise,” permitting courts to require a “disclosure to the judge before the claim of privilege will be accepted,” including, if necessary, a “complete disclosure.” Reynolds, 345 U.S. at 9-10.

In sum, like Totten before it, Reynolds was a common law decision decided on common law principles,

and it derived none of its rules from the president’s Article II responsibilities. Exercising the traditional authority to carve out evidentiary privileges under federal common law based on general assessments of

sound public policy, this Court patterned the scope of

the privilege on the model provided by contemporary

law in the United Kingdom.

II. The Government Mischaracterizes the

Origins and Foundation of the Privilege.

A. Ambiguous episodes in the early

Republic have no clear connection

to the state secrets privilege.

Despite the history recounted above, the government insists that “[t]he Executive’s power and duty . . .

to protect state secrets” has been “recognized since the

earliest years of the Republic,” Pet. Br. 2, and attempts

to trace a direct line between certain episodes in the

early Republic and the privilege later established in

Reynolds. That effort is unavailing. Early judicial decisions did not recognize a state secrets privilege or

any predecessor to it. The government’s evidence consists of ambiguous dicta and an incident involving a

congressional request for documents—none of which

has any clear relationship to the state secrets privilege, much less supplies evidence of a constitutional

foundation for that privilege.

The “early pronouncements” cited by the government and the dissent below “dealt with a series of evidentiary questions that were quite distinct from one

another and which did not necessarily concern matters

of a diplomatic or military nature.” Chesney, supra, at

1270. Focused on the confidentiality of communications among government officials, not on presidential

authority under Article II, these discussions are, at

best, nascent expressions of a “general notion of executive privilege” that fail to clarify its “nature or extent.” Setty, supra, at 232; see Weaver & Pallitto, supra, at 96 (“until recently, courts did not undertake to

disentangle executive privilege from the power to

withhold military and state secrets from judicial proceedings”).

The government points primarily to statements

made by Chief Justice Marshall while presiding over

Aaron Burr’s treason trial, in which the defense sought

a letter discussing Burr that a U.S. general had sent

to President Jefferson. See United States v. Burr, 25

F. Cas. 187, 190 (C.C.D. Va. 1807). According to the

government, Marshall acknowledged a need for judicial deference to “the President’s judgment that, in response to a trial subpoena, the public interest required

that certain documents ‘be kept secret.’” Pet. Br. 3

(quoting Burr, 25 F. Cas. at 192). But the government

mischaracterizes Marshall’s statements.

Contrary to the government’s intimation, Jefferson “did not attempt to withhold any documents from

production to the court.” Setty, supra, at 232-33. Rather, prosecutor George Hay “said he had that letter,

and would produce it,” but that “some matters” discussed in the letter “ought not to be made public.”

Burr, 25 F. Cas. at 190 (emphasis added); see id. (objecting to “public inspection” of these passages). Notably, Hay “was willing to put them in the hands of the

clerk confidentially” to “copy all those parts which had

relation to the cause,” and suggested that “if there

should be any difference of opinion as to what were

confidential passages, the court should decide.” Id.

(emphasis added).

Marshall approved a subpoena duces tecum for the

letter, and Hay produced it, “excepting such parts” as

were, in his view, “not material” to the defense or the

issues involved. Id. The government “was not resisting production on the ground that disclosure of the document would endanger the public safety,” Chesney, supra, at 1272 (quotation marks omitted), but rather because portions of the letter were “confidential,” Burr,

25 F. Cas. at 190. And crucially, Hay had no objection

to allowing the court to view the entire letter to

confirm that the passages in question were not material: “The accuracy of this opinion I am willing to refer

to the judgment of the court, by submitting the original

letter to its inspection.” Id. (emphasis added). Thus,

“the Government was perfectly willing to leave it to the

court to determine whether portions of the letter were

in fact privileged. It insisted only that the portions so

adjudged should be withheld from the defendant.” Raoul Berger & Abe Krash, Government Immunity from

Discovery, 59 Yale L.J. 1451, 1458 (1950).

This was the context for Marshall’s statement relied on here by the government: “Had the president,

when he transmitted [the letter], subjected it to certain restrictions, and stated that in his judgment the

public interest required certain parts of it to be kept

secret, and had accordingly made a reservation of

them, all proper respect would have been paid to it,”

Marshall observed, “but he has made no such reservation.” Burr, 25 F. Cas. at 192. Marshall did not elaborate on what “proper respect” would have entailed,

and his focus, like the prosecutor’s, was on public disclosure:

In regard to the secrecy of these parts which it

is stated are improper to give out to the world,

the court will take any order that may be necessary. I do not think that the accused ought to

be prohibited from seeing the letter; but, if it

should be thought proper, I will order that

no copy of it be taken for public exhibition . . . .

After the accused has seen it, it will yet be a

question whether it shall go to the jury or not.

Id. (emphasis added). The government “produce[d] the

letter under the restrictions suggested by the court,”

id. at 192-93, and ultimately the evidentiary dispute

“became moot, sparing Marshall the need to take a

firm stand with respect to privilege issues,” Chesney,

supra, at 1272-73.

In short, Burr does not evince any understanding

in the early Republic that executive branch officials

could withhold materials from review by the courts on

national security grounds, much less suggest a constitutional pedigree for the modern state secrets privilege. The government’s objections in Burr did not

clearly relate to military or diplomatic secrets, and

constitutional principles were not invoked. Most importantly, no one raised any objection to judicial review of the allegedly immaterial passages in the disputed letter—not the prosecutor, not Jefferson, and

not Marshall. To the extent that Burr sheds any light

on the present controversy, therefore, it supports the

position of Respondents, not the government: the assumption shared by all was that court review would

remain available even if particular information could

not be disclosed publicly.

The dissent below cites Marbury v. Madison,

5 U.S. 137 (1803), to similar ends, pointing to a trial

colloquy in that case as evidence that “the Judiciary

has long recognized an executive privilege over sensitive information.” Pet. App. 116a (Bumatay, J., dissenting from the denial of rehearing en banc). But that

exchange has nothing to do with state secrets.

At trial in Marbury, the attorney general claimed

“that he was not bound . . . to answer, as to any facts

which came officially to his knowledge while acting as

secretary of state.” 5 U.S. at 143; id. at 144 (“He did

not think himself bound to disclose his official transactions while acting as secretary of state.”). Although

Chief Justice Marshall had “no doubt he ought to answer” the questions put to him, because “[t]here was

nothing confidential required to be disclosed,” Marshall also suggested that “if he thought that any thing

was communicated to him in confidence he was not

bound to disclose it.” Id. at 144.

“The Marbury dicta raised more questions than it

answered.” Chesney, supra, at 1272. “Did the Court

mean to suggest that confidential communications to

executive branch officials are privileged,” and if so,

“was the basis for protection rooted in the common law

of evidence, in constitutional considerations associated

with the independence of the executive branch, or

both?” Id. “Or was the point to suggest that courts

lack the capacity to subject a cabinet official to judicial

process . . . ?” Id.

There is no way of knowing. And regardless, the

exchange did not involve any claim of authority to

withhold state secrets from the judiciary on the basis

of the president’s Article II authority over military and

foreign affairs. Instead, this episode and the one in

Burr are “best thought of” as pertaining to the “deliberative process privilege,” id. at 1274, or simply to an

early conception of executive privilege more generally,

see Trenga, supra, at 11 n.21. Neither case is clearly

related to the modern state secrets privilege, much

less suggests that the privilege is grounded in the Constitution.3

With no other judicial sources of even arguable relevance, the government cites President Washington’s

response to a legislative request for documents concerning the disastrous St. Clair expedition. Pet. Br. 2;

see Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 20293 Notably, Greenleaf’s mid-nineteenth-century treatise cited

Burr and Marbury only in regard to protecting the confidentiality

of communications among government officials, a privilege enjoyed by state as well as federal officers. See Greenleaf, supra, at

329. The American editor of Starkie’s treatise cited those opinions (only) for the same point. See Starkie, supra, at 71 n.1.

30 (2020). But this episode has even less to do with

the state secrets privilege than the discussions in Marbury and Burr.

Upon receiving this congressional request, Washington’s cabinet concluded—relying primarily on precedents from the English House of Commons—that

presidents could withhold documents from Congress

“the disclosure of which would injure the public.”

1 The Writings of Thomas Jefferson 304 (Andrew Lipscomb ed., 1903). But despite affirming, in theory, this

right to withhold documents from Congress, the cabinet “agreed in this case, that there was not a paper

which might not be properly produced.” Id. at 305; see

20 Op. O.L.C. 253, 270 (1996) (“[T]he cabinet further

advised President Washington that the documents in

question could all be disclosed consistently with the

public interest.”).

This episode did not concern privileges from disclosure in judicial proceedings, much less the question

of when judges can or should compel disclosure of contested materials in camera. Moreover, there is no record of the basis for the position taken by Washington’s

cabinet, beyond the vague public-interest rationale

quoted above. And although Congress, upon learning

of the administration’s position, issued a new request

asking only for papers “of a public nature,” 20 Op.

O.L.C. at 270, the import of that change was also “ambiguous,” id. at 270 n.54 (quoting Abraham D. Sofaer,

War, Foreign Affairs and Constitutional Power 82-83

(1976)).

In short, the St. Clair incident—flush with ambiguity and fundamentally involving the interplay between the political branches, see Mazars, 140 S. Ct. at

2031—offers paltry support for the notion that the

state secrets privilege is “a longstanding feature of our

legal system” with “a firm foundation in the Constitution.” Pet. Br. 42, 45 (quotation marks omitted).

B. Any relationship between Article II

and the state secrets privilege remains

undefined.

Since Reynolds, this Court has hinted that Article II may call for some version of a state secrets privilege, given the president’s responsibilities in military

and diplomatic affairs. But none of the features of the

privilege that actually exists has ever been linked to

any constitutional imperatives.

Reynolds is still “the only instance in which [this]

Court has articulated a standard for the state secrets

privilege.” Setty, supra, at 208. Comments made in

United States v. Nixon, 418 U.S. 683 (1974), however,

may provide “indirect support” for the idea that a privilege against disclosing military and state secrets implicates presidential authority under the Constitution.

Chesney, supra, at 1294. In rejecting President

Nixon’s broad and undifferentiated claim of executive

privilege, this Court implied that it might have accorded greater protection to his “interest in confidentiality” in his “Presidential communications” if they had

concerned “military or diplomatic secrets.” Nixon, 418

U.S. at 706, 711. More generally, this Court stated

that “to the extent” that an interest in confidentiality

“relates to the effective discharge of a President’s powers, it is constitutionally based.” Id. at 711. At the

same time, however, this Court endorsed in camera judicial review of subpoenaed presidential materials to

excise any portions that might be privileged under

Reynolds. See id. at 715 n.21.

“Nixon was not, of course, a state secrets privilege

case,” and its allusion to the possibility of a different

result if military or diplomatic matters had been

involved was dicta. Chesney, supra, at 1294. Still,

this Court’s comments may suggest that some form of

a state secrets privilege could be constitutionally compelled—at least with respect to “confidential conversations between a President and his close advisors.”

Nixon, 418 U.S. at 703. “Plainly, however,” any such

constitutional core “does not account for the full scope

of the privilege as it has come to be understood.”

Chesney, supra, at 1309. As discussed, the substantive and procedural standards that actually comprise

the privilege did not result from an analysis of the Constitution. Rather, they were imported from abroad

and adopted in common law fashion without any consideration of Article II or the separation of powers.

To assert that the state secrets privilege performs

“a function of constitutional significance,” therefore,

Pet. Br. 45 (quoting El-Masri v. United States, 479

F.3d 296, 304 (4th Cir. 2007)), is not so much wrong as

it is misleading in its artful construction. The ability

to conceal information concerning national security

may indeed make it easier for the executive branch to

pursue the goals it has set in the realms of military or

foreign affairs. In that sense, any state secrets privilege adopted by the courts, whatever its scope or rationale, would have “constitutional significance.” Id.

But it is a leap to jump from that observation to the

conclusion that the state secrets privilege as we know

it—fashioned in Reynolds as a matter of federal common law—has “a firm foundation in the Constitution.”

Id. (quoting El-Masri, 479 F.3d at 304). The history of

the privilege belies that assertion.

III. Because the Question Here Implicates

the Powers of All Three Branches of

Government, the Analysis Should Not Be

Slanted in Favor of the Executive.

Tipping the interpretive scales in the executive

branch’s favor is inappropriate here for an additional

reason: the state secrets privilege affects the constitutional powers of all three branches of government.

“The Constitution gives Congress near-plenary

power to decide which kinds of Article III cases and

controversies federal courts shall hear,” and the dismissal of lawsuits as a result of the state secrets privilege therefore “intrudes not just on the power of courts

and the rights of individuals, but on the jurisdictionconferring authority of the legislature as well.”

Amanda Frost, The State Secrets Privilege and Separation of Powers, 75 Fordham L. Rev. 1931, 1932

(2007); see In re United States, 872 F.2d 472, 477 (D.C.

Cir. 1989) (“[D]enial of the forum provided under the

Constitution for the resolution of disputes, U.S. Const.

art. III, § 2, is a drastic remedy . . . .”).

Further, when the executive branch uses the state

secrets privilege “to obtain dismissals of suits alleging

government misconduct or unconstitutional behavior,”

it “raises special concerns relating to democratic accountability and the rule of law.” Chesney, supra, at

1308. While the judiciary has no “roving writ to ferret

out and strike down executive excess,” El-Masri, 479

F.3d at 312, the Framers intended that in resolving

“Cases” and “Controversies,” U.S. Const. art. III, § 2,

cl. 1, and “decid[ing] on the rights of individuals,” Marbury, 5 U.S. at 170, the federal courts would rein in

unlawful abuses by the executive branch, preserving

the rights secured by federal law “from all violation

from every quarter,” Cohens v. Virginia, 19 U.S. 264,

388 (1821); see 1 Annals of Cong. 457 (1789) (Joseph

Gales ed., 1834) (James Madison) (“independent tribunals of justice will consider themselves in a peculiar

manner the guardians of those rights; they will be an

impenetrable bulwark against every assumption of

power in the legislative or executive”); The Federalist

No. 78, at 466 (Alexander Hamilton) (Clinton Rossiter

ed., 1961) (“Without this, all the reservations of particular rights or privileges would amount to nothing.”).

Critically, too, “power over national security information does not rest solely with the president.” In re

NSA, 564 F. Supp. 2d at 1120-21. Instead, “decisions

as to foreign policy . . . . are wholly confided by our

Constitution to the political departments of the government, Executive and Legislative.” Chicago & S. Air

Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948)

(emphasis added). So too for decisions concerning military policy. See Martin v. Mott, 25 U.S. 19, 28-29

(1827). Indeed, Congress, not the president, is the “final arbiter of military and diplomatic policy.” James

Zagel, The State Secrets Privilege, 50 Minn. L. Rev.

875, 896 (1966); see id. at 896 n.82 (“The presidential

powers over treaties and the armed forces are subject

either to outright congressional veto or to implied veto

by virtue of Congress’ control over appointments and

appropriations.”).

In line with this constitutional structure, Congress

has empowered the judiciary “to hear cases in which

executive power is challenged” by giving it “broad federal question jurisdiction, and by enacting specific

statutory limits on executive power in the area of national security, such as in the Foreign Intelligence Surveillance Act.” Frost, supra, at 1954-55. When the

state secrets privilege restricts the breadth of that jurisdiction and the effectiveness of those limits, it affects the constitutional roles of Congress and the federal courts.

Thus, when the question is whether a statute enacted by the legislature permits the judiciary to adjudicate allegations that the executive has violated the

law, the answer implicates the constitutional powers

of all three branches of government. Skewing that

statutory analysis in favor of the executive is unwarranted.

***

In sum, there is no justification for distorting the

normal approach to statutory interpretation here by

demanding a showing “that Congress was unmistakably clear,” Pet. Br. 16 (quoting Pet. App. 110a), when

it displaced the state secrets privilege in FISA. This

Court should do what it normally does: interpret the

statute to discern its meaning.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be affirmed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

September 28, 2021

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.