The first step in Jewel v. NSA is for the court to decide whether to adopt or reject the government’s invocation of the controversial 'state secrets' privilege—a legal tool that started as a limited shield intended to protect legitimate and critical government national security secrets, but which the government has attempted to turn into a sword to block Americans seeking to enforce the law and the Constitution.

Essentially, by invoking the state secrets privilege in this way, the government argues that even if all of the allegations of serious law-breaking and Constitutional violations are true, surveillance of millions of ordinary Americans is exempt from judicial review.

In response to the government’s assertion, and as it has since the first wiretapping cases started in 2006, EFF argues that in creating the Foreign Intelligence Surveillance Act, Congress preempted the state secrets privilege, creating a separate but still very secure way for the case to be decided. The FISA law not only prevents the immediate dismissal of the case, it affirmatively instructs courts to determine whether electronic surveillance is legal.

In July 2013, the court rejected the government’s “state secrets” argument, ruling that any properly classified details can be litigated under the procedures of the Foreign Intelligence Surveillance Act (FISA). It is unclear whether the government will appeal.

What is the State Secrets Privilege

The Supreme Court recognized the ‘state secrets’ privilege in the 1953 case United States v. Reynolds. The 1953 privilege was much more limited than how the government interprets it today.

Invoking the Privilege: As the Supreme Court said at the time, it can only be invoked where “‘there is a reasonable danger’ that disclosure [of evidence] will ‘expose military matters which, in the interest of national security, should not be divulged.’ The invocation must come from “the head of the department which has control over the matter, after actual personal consideration of that office.”

Impact of the Privilege: Under Reynolds, the government could exempt individual pieces of evidence from discovery—evidence that only the government possessed—if their release would harm national security. The case could still go forward with other evidence. The Supreme Court recently confirmed this interpretation, saying “The privileged information is excluded and the trial goes on without it.”

Critically, the privilege could not exempt underlying facts from judicial review if plaintiffs had the same evidence from another source.

State Secrets Privilege Expansion After 9/11

But since 9/11, first the Bush and then the Obama Administration have aggressively used the ‘state secrets’ privilege, insisting that entire cases could be exempt from judicial review at the outset if they touch on national security. They seek to use the narrow, evidentiary scalpel like a chainsaw, to deny justice for millions of ordinary Americans for rampant violations of their rights.



The Administrations have even argued that cases must be dismissed entirely even when all the underlying facts are already public, if the judge's conclusion about these facts would confirm the allegations.



Under this theory, the government could potentially violate the law and Constitution as it sees fit, and—just by stamping “STATE SECRET” on the top of their actions—those injured by their actions would be denied justice. A Ninth Circuit Court of Appeals panel once described the argument as such:

At base, the government argues here that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official…According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.”

A notable series of cases during the Bush years were brought by the ACLU and involved serious and disturbing allegations of torture, supported by hundreds of pages of public evidence. According to the government, it did not matter if the information the they considered “secret” had already appeared on the front page of the New York Times and the Washington Post, or been officially investigated and admitted to by official European government commissions. The government argued that they not only had complete control of their own documents, but the facts underlying them.

ACLU’s Ben Wizner said at the time that if the government’s argument was accepted, “The only place in the world where these claims can't be discussed is in the courtroom.”

In FISA, Congress Preempted the State Secrets Privilege

In Jewel v. NSA, EFF also has thousands of pages of already-public evidence—including an AT&T whistleblower, three NSA whistleblowers, Congressional testimony, Inspector General reports and investigations from virtually every major news agency. We are asking the court to allow the case to go forward and hear the evidence. But unlike the other post-9/11 state secrets cases, in Jewel we have an additional tool: FISA, the law that governs national electronic surveillance cases expressly supersedes the state secrets privilege.

As a result of another domestic spying scandal, Congress created clear legal claims in FISA to allow those impacted by electronic surveillance to sue in court. Congress also provided explicit instructions, similar to those used in cases against accused terrorists, providing how to litigate these issues even if they involve national security secrets. In one key section (1806(f)), the law says:

Whenever any motion or request is made by an aggrieved person...the United States District Court shall,...notwithstanding any other law...review in camera and ex party the applications, order and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.

The statute not only requires the court let the case go forward on our public evidence, it also provides strong tools for the government to protect any sensitive evidence that the government needs to use to make its case but which cannot be made public, while still allowing a judicial determination.

The ultimate lesson here is that secrecy is not an immunity trump card and no government agency should be above the law. There is no better example of this than the original state secrets case, US v. Reynolds. The government, at the time, claimed the evidence it was withholding would reveal critical national security secrets and the Court agreed. But in 2000, when the documents at issue were finally declassified, they contained no secrets at all. The only thing the documents contained was evidence of government negligence—which would have validated the plaintiff’s case.