In the wake of the September 11th terrorist attacks, the United States government adopted extensive surveillance measures in the hopes of preventing further tragedies. Over time, these measures expanded – seemingly without limits. By 2008, government surveillance of Americans no longer required evidence of a connection between the subject of surveillance and a legitimate national security threat. Not even supervisor approval was necessary for FBI agents to begin surveillance. Decreasing restrictions from the federal government, coupled with a significant rise in Islamophobia, meant that Muslim communities across the country began to experience discriminatory surveillance. For the United States government, Muslim religious identity was synonymous with a terrorist threat.
This phenomenon was experienced firsthand by the respondents in the recent Supreme Court case, Federal Bureau of Investigation v. Fazaga. Throughout 2006 and 2007, the FBI conducted a series of surveillance operations by sending undercover police informants to different mosques in California – one of which was the Islamic Center of Irvine, where the respondents attended services. Alleging that the FBI began surveillance based solely on their religious identity with a lack of evidence of any potential threat of terrorism, the respondents sued the Bureau. In response to the initial lawsuit, the U.S. Attorney General claimed the state secrets privilege – an evidentiary rule that allows the federal government to prevent the disclosure of any evidence that could threaten national security.
Countering this privilege assertion, the respondents argued that the claims of religious discrimination must be examined using the guidelines set by the Foreign Intelligence Surveillance Act (FISA). This act allows for a judge to privately review sensitive evidence concerning government surveillance in order to determine if it can be used in a case.
The question eventually brought before the United States Supreme Court was whether FISA displaced the state secrets privilege, so that a judge could examine the evidence to determine the legality of the surveillance could be determined. According to the Court, it did not.
How does this decision affect the strength of democracy in the United States?
First, the acceptance of this type of surveillance can have a devastating impact on free expression. According to Ozan Varol, author of the article “Stealth Authoritarianism,” just the threat of government surveillance is enough to provoke self-censorship amongst the public. Regarding the case at hand, the acceptance of such surveillance actions will discourage Muslim individuals from criticizing the government – a government which they have plenty of reason to criticize – out of fear of retaliation.
More generally, if the public knows that there is an ever-present threat of undercover government officials and other surveillance tactics, they too will be far less inclined to criticize the government or offer contrary opinions. Unjust surveillance tactics, such as those seen in Federal Bureau of Investigation v. Fazaga, do not create an environment characterized by the liberties on which America prides itself.
Secondly, lax restrictions for the state secrets privilege contribute to the worryingly permissive attitude toward government over-classification and the resulting lack of transparency. In cases of national security, the executive branch faces minimal checks on power when it comes to government classification. If FISA – the mechanism by which this sensitive surveillance evidence can be examined – does not have the ability to counteract the state secrets privilege, what does? How can parties alleging discriminatory surveillance ever stand a chance when their evidence is prohibited from being used in court?
In defense of the state secrets privilege, it has been argued that judges do not understand national security concerns as well as the executive branch, so they cannot rule on which sensitive evidence can and cannot be included in the deliberation of a case. While this may be true, how else can it be ensured that the executive branch is not abusing their power to classify evidence? What’s more, according to “How to Lose a Constitutional Democracy” by Aziz Huq and Tom Ginsburg, the Constitution lacks crucial constraints on government classification. There are no Constitutional requirements for government transparency. Any potentially damning evidence can be restricted through a state secrets privilege claim.
This is not just a hypothetical fear – the state secrets privilege itself was established by way of a Supreme Court case that involved government classification of damning evidence. If the relevant documents in United States v. Reynolds had not been protected by the state secrets privilege, the Supreme Court would have found “nothing that related to military secrets or confidential equipment,” but rather only information regarding the errors made by the Air Force crew on that flight that resulted in civilian deaths. The state secrets privilege allows the government to control the narrative, leaving the judicial system and the public in the dark.
In order to have a fully free democracy, checks on the classification powers of the executive branch are essential. The public cannot make informed electoral decisions without an understanding of their government’s actions. According to Varol, a crucial aspect of slow decay of democracy is the use of legitimate laws for anti-democratic purposes. The state secrets privilege is a perfectly legal rule. However, when left unchecked, the consequences can be dire for America’s democracy.
Undoubtedly, protecting the nation is of the utmost importance, but there must be a way for national security measures to coexist with extensive government transparency and a steadfast protection of civil liberties. Democracy will continue to be in danger without this compromise.