Fazaga v. FBI

8.18.2012 1 Comment

Writing for the People’s Blog for the Constitution, Shahid Buttar observed that:

On Tuesday, August 14, a federal judge issued a disturbing ruling allowing the Federal Bureau of Investigation (FBI) to evade public accountability for infiltrating faith institutions, monitoring law-abiding people, recording sexual encounters, and then lying about all of it. Carney’s decision erodes democracy in two dimensions at once, enabling ongoing constitutional violations by the executive branch while, at the same time, eroding judicial independence.

What Buttar depicts above and throughout his article is a dualism intrinsic to a political system which observes the rule of law in some areas but not all areas. This dualism features prominently in Ernst Frankel’s seminal The Dual State. Frankel’s analysis focuses on the post-Weimar German state as used by the National Socialist to govern Germany. The gist of his analytical edifice rests upon a division of the German state into two coexisting but not equal domains. He calls one domain the Normative State. The Normative State is a domain in which the rule of law regulates social life. He calls the second and superior domain the Prerogative State. The Prerogative State is a domain defined and governed by the prerogative powers of the political sovereign, the kind of powers once available only to a Monarch. In the Prerogative State the law becomes a component of force available to the sovereign. Thus it can be said that the rule by law and coercion replaces the rule of law and legitimate authority in domain of the Prerogative State. In Nazi Germany, the object of Frankel’s analysis, Der Führer was the source of the state’s prerogative powers. In the United States today the state’s prerogative power originated in the President construed as Commander in Chief and the source of authority for the massive security-surveillance apparatus which now exists in the United States. It is this apparatus which operates beyond the reaches of the Normative State, a claim supported by Fazaga v. FBI. In his principal Fazaga ruling, a Federal Judge, Cormac J. Carney, ruled in favor of the Federal Bureau of Investigation:

After careful deliberation and skeptical scrutiny of the public and classified filings, the Court concludes that Plaintiffs’ claims against Defendants, aside from their FISA claim, must be dismissed under the state secrets privilege. Further litigation of those claims would require or unjustifiably risk disclosure of secret and classified information regarding the nature and scope of the FBI’s counterterrorism investigations, the specific individuals under investigation and their associates, and the tactics and sources of information used in combating possible terrorist attacks on the United States and its allies. The state secrets privilege is specifically designed to protect against disclosure of such information that is so vital to our country’s national security.

In his ruling Judge Carney recognized the separate and superior domain of the Prerogative State. It is, by definition, a legal space which lacks rule of law safeguards, as the victims of the FBI in Southern California can claim based on their experiences.

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