Secrecy: State Secrets Privilege

Supreme Court to Hear State Secrets Case on FBI Surveillance

By Rohini Kurup
Wednesday, September 15, 2021, 3:51 PM

In June, the Supreme Court announced that it would hear Federal Bureau of Investigation v. Fazaga, a case that arose from the covert surveillance of Muslim communities in Southern California as part of an FBI operation more than a decade ago. The suit was first brought by three men who claim they were targets of the operation and who seek evidence to support their claim that the probe violated the Constitution and federal law. In response to several of the claims in the suit, the FBI invoked the state secrets privilege, a common law rule that allows the government to withhold from discovery information in litigation that it argues could threaten national security.

The question before the Supreme Court is whether the Foreign Intelligence Surveillance Act (FISA), which regulates electronic surveillance, displaces the state secrets privilege and authorizes a district court to consider evidence over which the state secrets privilege has been asserted. It’s the second case involving the state secrets privilege that the Supreme Court has agreed to hear in the coming October term. This post provides a background and procedural history to contextualize the Fazaga case, which could have significant implications not only for future challenges to government surveillance under FISA but also to the government’s use of the state secrets privilege.

The Foreign Intelligence Surveillance Act

First passed by Congress in 1978, FISA governs the physical and electronic surveillance of foreign powers and agents. FISA provides a right of action to challenge unlawful surveillance and creates a procedure, codified in 50 U.S.C. § 1806(f), that governs the review of classified material in the context of electronic surveillance. It’s this section that the petitioners use to dispute the government’s assertion of the state secrets privilege. Section 1806(f) allows district courts to review in camera and ex parte materials related to surveillance to determine whether the surveillance was authorized and conducted lawfully. The section provides a particular mechanism by which the government can assert that disclosure of evidence would harm national security. Specifically, “if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States,” the court is prohibited from disclosing any information that is not directly necessary to determining whether the surveillance was legal.

The State Secrets Privilege

The state secrets privilege is an evidentiary rule that allows the government to withhold from discovery in civil litigation evidence when, in its judgment, its disclosure could harm national security. To invoke the privilege, the head of the relevant executive branch department must file a formal claim of privilege with the courts. When the privilege is invoked and recognized by the court, the sensitive information is excluded from the discoverable evidence. In instances when letting the case be litigated to judgment would pose an unacceptable risk of disclosing state secrets, even without the privileged evidence, the case is dismissed entirely.

Background

In February 2011, three Muslim men in California brought a lawsuit alleging that for 14 months in 2006 and 2007, the FBI used a confidential informant to infiltrate mosques in Southern California and surveillance to gather information on Muslims because of their religion. The plaintiffs—Yassir Fazaga, an imam at the Orange County Islamic Foundation, and Ali Uddin Malik and Yasser AbdelRahim, who regularly attended the Islamic Center of Irvine—accused the FBI of conducting unconstitutional searches and engaging in religious discrimination. According to the plaintiffs, this was part of a post-Sept. 11 counterterrorism operation, known as Operation Flex, where the FBI paid an informant, Craig Monteilh, to gather information on Muslims and conduct both electronic and non-electronic surveillance.

Monteilh pretended to be a convert to Islam and joined the Islamic Center of Irvine. He allegedly gathered information on the Muslims he met, also wearing and planting recording devices in the mosque and in the homes and workplaces of members of the mosque. In their complaint, the men claim that the information gathered included hundreds of phone numbers, email addresses, and hours of video recordings and thousands of hours of audio recording. The operation began to fall apart when Monteilh, allegedly under FBI guidance, attempted to incite violence, leading community members to report him to law enforcement and win a restraining order against him. Operation Flex came to light years later when an FBI agent revealed during a naturalization fraud case against an Islamic Center of Irvine member that evidence was obtained using recordings created by an informant. The context of the agent’s testimony revealed that the informant was Monteilh, and Monteilh later revealed details of the operation to the media.

The U.S. District Court for the Central District of California

The plaintiffs in 2011 filed their complaint as a punitive class action lawsuit and defined the class as “[a]ll individuals targeted by Defendants for surveillance or information-gathering through Monteilh and Operation Flex, on account of their religion, and about whom the FBI thereby gathered personally identifiable information.” The claim included 11 charges against the United States, the FBI, former FBI Director Robert Mueller and former FBI Los Angeles Field Office Assistant Director Steven Martinez in their official capacities, and five FBI agents in their individual capacities. These charges are laid out in a chart in this Lawfare post. They fall into two categories: claims alleging illegal searches under the Fourth Amendment and claims alleging unlawful discrimination in violation of the Constitution and federal law. The discrimination claims were brought under the Free Exercise Clause of the First Amendment, the right to equal protection under the Due Process Clause of the Fifth Amendment, the Privacy Act, the Religious Freedom Restoration Act, FISA and the Federal Tort Claims Act.

The government sought to dismiss the discrimination claims, but not the search claims, under the state secrets privilege, on the grounds that further litigation on those claims would unduly risk national security.

Then-Attorney General Eric Holder asserted the privilege over three categories of information: evidence that could “confirm or deny whether a particular individual was or was not the subject of an FBI counterterrorism investigation”; information that could reveal “the initial reasons (i.e., predicate) for an FBI counterterrorism investigation of a particular person (including in Operation Flex), any information obtained during the course of such an investigation, and the status and results of the investigation”; and information that could “reveal whether particular sources and methods were used in a counterterrorism investigation.” The government moved to dismiss the search claims based not on the state secrets privilege but, rather, on different arguments.

The U.S. District Court for the Central District of California in August 2011 dismissed all but one of the plaintiffs’ 11 claims. As relevant here, the district court dismissed 10 claims on the basis of the state secrets privilege, even those claims that the government had not moved to dismiss on the grounds of secrecy. The court concluded that Operation Flex “involves intelligence that, if disclosed, would significantly compromise national security.” And it held that in order to defend against the plaintiffs’ claims, the government defendants would have to rely on state secrets material that was inextricably tied to nonprivileged material. This means that, per the district court, protective orders or restrictions on testimony could not avert the risk of disclosing secrets. Importantly, the district court declined to use FISA’s in camera, ex parte procedures—established in § 1806(f)—to evaluate whether the evidence over which the government asserted state secrets privilege had been lawfully obtained; the court also declined to require the government to follow the statutory mechanism for asserting that disclosure of information would harm the national security. The court reasoned that the in camera, ex parte procedure did not apply to non-FISA claims.

The U.S. Court of Appeals for the Ninth Circuit

The plaintiffs appealed the district court’s dismissal of their claims. In February 2019, the Ninth Circuit affirmed in part and reversed in part.

Of relevance to the Supreme Court petition, the panel first held that the district court erred in dismissing on secrecy grounds the search claims that the government had not sought to dismiss under the privilege, determining that only the government—not the court—could assert the privilege.

It also reversed the district court’s dismissal of all the religious discrimination claims. First, the panel considered § 1806(f), which applies when an “aggrieved person” makes a request to obtain applications, orders, or other materials relating to electronic surveillance or to suppress information derived from surveillance and “if the Attorney General files an affidavit under oath” asserting that disclosure of such information or an adversary hearing would harm the national security of the United States. In those cases, the relevant district court must “review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” The panel determined that Congress intended to make the in camera, ex parte procedure “the exclusive procedure for evaluating evidence that threatens national security in the context of electronic surveillance-related determinations.” The panel concluded that when § 1806(f) procedure applies, it displaces the state secrets privilege’s dismissal remedy—which allows cases to be dismissed if they cannot proceed without the privileged evidence—with respect to electronic surveillance. This meant that in those instances, FISA superseded the state secrets privilege and its dismissal remedy. In making that determination, the Ninth Circuit became the first federal court of appeals to reach that conclusion.

The Ninth Circuit found that the § 1806(f) procedures applied to the plaintiffs’ request in Fazaga, and so the district court should not have dismissed the discrimination claims outright. Rather, the panel found, the district court should have followed FISA procedures to evaluate whether the surveillance was conducted lawfully. And to the extent the government asserted that disclosure of the information relevant to the plaintiffs’ claims would harm national security, the court should have implemented § 1806(f) requirements for making such an assertion.

The panel remanded, directing the district court to use the in camera, ex parte procedures established by § 1806(f) to evaluate the electronic surveillance, including the evidence over which the government asserted the state secrets privilege, to determine whether it was authorized and conducted lawfully. The panel held that once the review of the lawfulness of the surveillance was completed, it could use that assessment and evidence to “determine the lawfulness of the surveillance falling outside FISA’s purview,” if the plaintiffs proceeded with those claims. And it emphasized that the government could then raise the state secrets defense, which the district court could consider again.

The government sought to have the case reheard en banc, but the Ninth Circuit denied the request with 10 judges dissenting. The government then filed a writ of certiorari.

The Case Before the Supreme Court

The question the Supreme Court will consider is whether § 1806(f) displaces the state secrets privilege and authorizes the district court to assess the merits of the lawsuit challenging the lawfulness of electronic surveillance by considering the sensitive evidence in camera and ex parte.

In its petition for a writ of certiorari, filed by the Trump administration in December 2020, the government argued that the Ninth Circuit’s decision poses a significant risk to national security:

The court of appeals’ decision has the startling consequence of transforming a limited provision of FISA that was designed to safeguard national-security information into a mechanism for overriding the Executive’s invocation of the state-secrets privilege and for adjudicating the merits of private-party claims for substantive relief on the basis of state secrets.

The government claimed that contrary to the Ninth Circuit’s holding, § 1806(f) cannot be applied in this case and does not displace the state secrets privilege. The government argued first that § 1806(f) does not apply in Fazaga because the case does not fall under the circumstances in which the procedure is available. The procedure is available only in three circumstances: first, when the government provides notice of its intent to “use or disclose” electronic surveillance evidence against an aggrieved person; second, when an aggrieved person against whom electronic surveillance evidence has or will be used files a motion to suppress the evidence; or third, when a motion is made by an aggrieved person under any statute or rule to discover or obtain materials related to electronic surveillance or to suppress evidence derived from surveillance under FISA. In its brief, the government reasoned that the Ninth Circuit was incorrect in finding that the first and third grounds were satisfied in this case. On the first ground, the government said that its assertion of the state secrets privilege was not a notice of its intent to use evidence obtained through surveillance as part of its defense against the plaintiffs’ allegations, as the Ninth Circuit suggested, but rather an attempt to prevent the disclosure of the privileged information. And on the third ground, the government argued that the plaintiffs’ prayer for relief in their complaint should not be understood as a procedural motion “to discover, obtain, or suppress” FISA-derived information.

Further, the government claimed that the Ninth Circuit erred in holding that the § 1806(f) procedures preclude the government from invoking the state secrets privilege. “Nothing in Section 1806(f ) speaks—directly or indirectly—to displacing the state-secrets privilege or the government’s ability to protect the national security by removing state secrets from a case,” the petition says.

In a reply brief, the respondents argue that the government’s petition to the Supreme Court is premature. They stress that the case is still at the motion to dismiss stage and the government is advancing objections, as it does in its petition, to the applicability of § 1806(f) to the case. If the government’s threshold objections as to whether § 1806(f) can be applied prevailed on remand, it would mean that the court would not be able to apply the in camera, ex parte procedures, making the issue irrelevant. The respondents argue that it is therefore too early for the Supreme Court to take up the case.

The respondents emphasize that the Ninth Circuit’s ruling did not authorize the disclosure of information to the petitioners or the public and thereby risk national security. Rather, the only disclosure of information at this stage would be to the federal district court for the in camera and ex parte review. In the event that the district court orders any disclosure of information, the government could then assert the state secrets privilege. And the state secrets issue may become irrelevant if the government determines that the secret evidence is not necessary to address the religious discrimination claims.

If the Supreme Court proceeds to the merits, its ruling could have a significant effect on future lawsuits contesting government surveillance. Just months after the Ninth Circuit’s ruling, cases filed by the ACLU, the Electronic Frontier Foundation and the Knight First Amendment Institute all cited Fazaga in their challenges to government surveillance programs. Still, the complicated criteria that must be met for cases to trigger § 1806(f) review—for one, plaintiffs must first know that they were subject to surveillance, which is often not the case—mean that a victory for Fazaga may not lead to a flood of successful challenges to surveillance.

Regardless of the outcome, the court’s October term will be exceptional for its engagement with the state secrets privilege. The court is expected to hear the case on Nov. 8, a month after it hears a different case involving the privilege. In April, the Supreme Court agreed to take up United States v. Abu Zubaydah, a case involving a Guantanamo Bay detainee who is requesting information about his CIA-sponsored torture, which the government has invoked the state secrets privilege to block. Together, the two cases mark the first time the Supreme Court will be weighing in on the state secrets privilege in a decade.