(CN) – The Supreme Court should not address whether the state-secrets privilege has a constitutional basis when it tackles a case testing the government’s ability to invoke the privilege during litigation, two groups argue in a high-court brief.
The Al-Haramain Islamic Foundation and the Electronic Frontier Foundation filed a brief Tuesday asking the justices to limit their ruling in the consolidated cases of The Boeing Co. v. U.S. and General Dynamic Corp. v. U.S.
In those cases, the Supreme Court will decide if the government can sue a federal contractor for breach of contract, and then invoke the state-secrets privilege to block the contractor from disclosing sensitive information as part of its defense.
The foundations say the Supreme Court “need not and should not” address whether the state-secrets privilege has a constitutional basis, despite repeated invitations from the government to do so.
“The resolution of that issue is not necessary to these cases’ adjudication and is outside the scope of the question on which the court has granted certiorari,” the foundations argue. They urged the court to resolve that issue “only after a full, direct briefing in a case where the issue is squarely presented.”
But if the justices choose to do so, the groups added, they should conclude that the state-secrets privilege is grounded in common law, not the Constitution.
“The state-secrets privilege is not mentioned anywhere in Article II” of the Constitution, the brief states. “Indeed, the Constitution has nothing to say about secrecy of any sort, other than to give Congress the power to keep its proceedings secret. The provenance of the state-secrets privilege lies in the common law, not the Constitution.”
The Al-Haramain Islamic Foundation and attorneys Wendell Belew and Asim Ghafoor are the plaintiffs in a lawsuit accusing the National Security Agency and others of illegally spying on them through a warrantless wiretapping program. Their case is still pending.
The Electronic Frontier Foundation has represented plaintiffs in two cases stemming from the NSA’s domestic spy program.
In March, a federal judge in San Francisco ruled that the government violated federal laws on domestic surveillance by spying on the Islamic charity.
Though a final judgment is pending, Al-Haramain says any appeal by the government will likely raise the issue of whether the state-secrets privilege is constitutional. Thus, if the Supreme Court decides to resolve the question in the consolidated cases, its answer will likely affect how the 9th Circuit rules in Al-Haramain’s case.
The two groups want the court to wait to address the issue only when necessary, and only after a full briefing.