Whether the state-secrets privilege can be used to exclude public evidence establishing standing and dismiss a case as nonjusticiable

QUESTIONS PRESENTED This lawsuit challenges government mass-surveillance programs that over the past 20 years have (1) intercepted, copied, and searched the Internet communications, and (2) collected and searched the phone records, of hundreds of millions of innocent Americans. The district court, however, excluded under the state-secrets privilege public evidence showing that the mass surveillance included petitioners’ communications and communications records; it held that 50 U.S.C. § 1806(f)’s procedures for using secret evidence in lawsuits did not displace the state-secrets privilege; and it dismissed petitioners’ claims under the state-secrets privilege as nonjusticiable. The Ninth Circuit affirmed in a cursory three-page decision. In addition to its public dismissal order, the district court issued a classified order never disclosed to petitioners adjudicating their standing using secret evidence the court ordered the government to produce pursuant to section 1806(f) and 18 U.S.C. § 2712(b)(4). The Ninth Circuit did not adjudicate petitioners’ appeal of the classified order. This petition presents the following questions closely intertwined with the issues pending before the Court in US. v. Abu Zubaydah, No. 20-827, and FBI v. Fazaga, No. 20-828. 1. May a district court use the state-secrets privilege to exclude public evidence establishing a plaintiff’s standing to challenge government mass ii QUESTIONS PRESENTED—Continued surveillance and then dismiss the action under the state-secrets privilege as nonjusticiable? 2. When pursuant to 18 U.S.C. § 2712(b)(4) and 50 U.S.C. § 1806(f) a district court has granted a plaintiff’s discovery motion seeking evidence relating to electronic surveillance and the government produces the evidence to the court in camera and ex parte, may the plaintiff rely on that secret evidence to establish her standing or may the district court instead dismiss the action under the state-secrets privilege as nonjusticiable? 3. On appeal, may a court of appeals refuse to review for error a district court’s classified dispositive order never disclosed to the iii PARTIES Plaintiffs and petitioners are Carolyn Jewel, Tash Hepting, Erik Knutzen, Young Boon Hicks (as executrix of the estate of Gregory Hicks), and Joice Walton. They bring their claims individually and, for their Fourth Amendment claims, as representatives of a putative class comprising AT&T’s customers. Defendants and respondents are the National Security Agency (NSA); NSA Director General Paul Nakasone, in his official capacity; Keith B. Alexander, former NSA Director, in his personal capacity; Michael V. Hayden, former NSA Director, in his personal capacity; the United States of America; President Joseph Biden, in his official capacity; former President George W. Bush, in his personal capacity; former Vice-President Richard B. Cheney, in his personal capacity; David S. Addington, in his personal capacity; Department of Justice; Attorney General Merrick Garland, in his official capacity; former Attorney General Michael B. Mukasey, in his personal capacity; former Attorney General Alberto R. Gonzales, in his personal capacity; former Attorney General John D. Ashcroft, in his personal capacity; Avril Haines, Director of National Intelligence (DND, in her official capacity; former DNI John M. McConnell, in his personal capacity; and former DNI John D. Negroponte, in his personal capacity.