Brief of Professor Laura K. Donohue as Amicus Curiae in Support of Neither Party, FBI v. Fazaga, No. 20-828 (U.S. Aug. 6, 2021)

Amicus submits this brief in support of neither party to provide the Court with background on the origins and evolution of the state-secrets privilege. The English and American cases decided before United States v. Reynolds, 345 U.S. 1 (1953), as well as the decisions before and after the enactment of the Foreign Intelligence Surveillance Act of 1978 (FISA), produce several observations that may help the Court to resolve this case. First, both Reynolds and earlier English and American case law treat state secrets as an evidentiary privilege rather than a substantive rule of decision. As with other privileges, upholding an assertion of state secrets means that the case should continue, if possible, without the privileged information. Totten v. United States, 92 U.S. 105 (1876), in contrast, states a different rule of narrow applicability resting on the secrecy inherent in certain government contracts, as the Court made clear in General Dynamics Corp. v. United States, 563 U.S. 478, 485, 490 (2011), and Tenet v. Doe, 544 U.S. 1, 9-10 (2005). Second, although the judiciary affords the executive branch deference in asserting state secrets, courts consistently acknowledge their own, critical role in ensuring that those invocations of privilege are justified. Third, courts strive to find ways to avoid dismissing cases whenever possible. Often that means using in camera procedures to evaluate a defense, as in then-Judge Scalia’s opinion in Molerio v. FBI, 749 F.2d 815, 822 (D.C. Cir. 1984). Fourth, although dismissal based on the state-secrets evidentiary privilege finds no support in early English or U.S. cases before FISA (outside of the inapposite Totten line), a few post-FISA decisions have dismissed lawsuits regardless of their merits on the grounds that further litigation presents too great a risk of exposing state secrets. Those decisions underscore how rare that severe result should be. And they are confined primarily to circumstances in which state secrets are central, such as extraordinary rendition or defamation, where the truth or falsity of statement