Does Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 supplant the state-secrets privilege to allow a district court to investigate alleged national security secrets and determine the merits of a lawsuit challenging covert government surveillance of individuals freely practicing their religion?
This case asks the Supreme Court to balance the state-secrets privilege and the Foreign Intelligence Surveillance Act of 1978 (“FISA”). The state-secrets privilege permits the government to withhold certain information from evidence in a proceeding if that information’s disclosure would be detrimental to national security. FISA establishes procedures for judicial oversight of the government’s electronic surveillance of individuals in the United States. After the Federal Bureau of Investigation electronically surveilled Yassir Fazaga (“Fazaga”) and the Islamic Center as a part of counterterrorism efforts, Fazaga and other members of the Center filed suit based unconstitutional searches and the freedom of religion, seeking to use FISA to access the surveillance. The Federal Bureau of Investigation argues that the state-secrets privilege supersedes FISA and should be honored to avoid disclosure of privileged information that would harm national security. Yassir Fazaga counters that FISA displaces the state-secrets privilege and requires in camera and ex parte review of his religious freedom claims. The outcome of this case has strong implications for national security interests and civil liberties.
Questions as Framed for the Court by the Parties
Whether Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 displaces the states-secret privilege and authorizes a district court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence.
The Federal Bureau of Investigation (“FBI”), beginning at least in 2006, set up a counterterrorism operation known as Operation Flex, which used detection and prevention techniques to counter alleged terrorism and sought to “gather information on Muslims.” Fazaga v. Federal Bureau of Investigation at 19. As part of this operation, the FBI hired Craig Monteilh (“Monteilh”) as an informant in Los Angeles. Id. Monteilh began attending the Islamic Center of Irvine (“ICOI”) in July 2006. Id. The FBI instructed Monteilh to collect information from Muslims, and he recorded almost all of his interactions with Muslims at the ICOI and mosques in the area using audio and recording devices. Id. at 20–21. Monteilh collected information on hundreds of individuals and collected hundreds of hours of video surveillance of mosques and other interactions. Id. at 22. Monteilh installed video and audio recording devices in the mosques. Id. Yassir Fazaga (“Fazaga”), an imam in Orange County, was subject to video surveillance in his office and non-public areas. Id. at 18, 22.
After Monteilh began to ask questions about “jihad and armed conflict,” a community leader reported him to the FBI. Id. at 23. In June 2007, the Islamic Center was granted a restraining order against Monteilh. Id.
Fazaga and his fellow plaintiffs filed their complaint as a class action against the FBI and individual agent defendants in September 2011 with eleven causes of action. Id. at 24. The two categories of action the plaintiffs filed were unconstitutional searches and unlawful discrimination on the basis of religion. Id. Fazaga’s claims of discrimination describe violations of religious freedom under the First Amendment, equal protection under the Due Process Clause of the Fifth Amendment, Privacy Act, Religious Freedom Restoration Act, Foreign Intelligence Surveillance Act (“FISA”), and Federal Tort Claims Act. Id. Fazaga sought injunctive relief for the class and damage remedies for the affected individuals. Id. at 24–25.
The United States District Court for the Central District of California dismissed the FISA claim against the government. Id. at 26. The District Court allowed Fazaga’s FISA claim against the FBI agents to proceed, rejecting the FBI agents’ arguments for qualified immunity. Id. The District Court dismissed all of Fazaga’s other claims due to the states secret privilege, which the government may assert in the name of national security. Id. The District Court found that all of the underlying evidence necessary to both prove Fazaga’s claim and to defend against the claim implicated national security and was thus privileged. Id. Although Section 1806(f) of FISA permits in camera, ex parte review of evidence in private judicial chambers, the District Court declined to use those procedures because it had dismissed the FISA claims against the government. Id. at 26–27.
The United States Court of Appeals for the Ninth Circuit reviewed Fazaga’s appeal and the FBI agents’ appeal for denial of qualified immunity. Id. The Ninth Circuit reversed the district court’s denial of qualified immunity for the agents for Monteilh’s recorded conversations but did not find that the placement of electronic surveillance devices resulted in immunity. Id. at 33. Instead, individual defendants Agents J. Stephen Tidwell, Barbara Walls, and Pat Rose were entitled to dismissal for this category because plaintiffs did not allege that these individuals were involved with this surveillance. Id.
The Ninth Circuit reviewed the district court’s decision to dismiss all other claims relevant to the state-secrets privilege. Id. at 46. The Ninth Circuit found that the district court should have relied on FISA’s alternative methods to review “sensitive national security information.” Id. at 47.
The Ninth Circuit reviewed Fazaga’s Fourth Amendment claims against the FBI and the Fourth Amendment Bivens claims against the FBI agents. Id. at 76. The Ninth Circuit found that the district court should not have dismissed Fazaga’s Fourth Amendment injunctive relief claims because the records that were obtained and kept violated the United States Constitution. Id. at 79. The constitutional violation supports expungement relief for the existing records. Id. at 79–80. The Ninth Circuit found that the district court should review privileged materials using ex parte and in camera procedures. Id. at 101.
The FBI appealed, and the United States Supreme Court granted certiorari on June 7, 2021.
INVOKING THE STATE-SECRETS PRIVILEGE
Petitioner the FBI asserts that the Supreme Court should honor the Attorney General’s invocation of the state-secrets privilege to avoid potential disclosure of privileged information that could harm national security. Brief for Petitioners, Federal Bureau of Investigation (“FBI”), et al. at 25. According to the FBI, the statutory language of Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 (“FISA”) does not supersede the state-secrets privilege. Id. at 35. The FBI explains that there are no explicit nor inexplicit mentions of the state-secrets privilege in FISA’s text. Id. at 36. The FBI also observes that neither the U.S. Court of Appeals for the Ninth Circuit nor Fazaga have pointed to any information in FISA’s legislative history that mentions the state-secrets privilege. Id. Thus, the FBI contends that Congress did not intend for FISA to displace the state-secrets privilege because Congress would have used clear and unambiguous language if it desired to adopt such a drastic change. Id. at 35–36. Furthermore, the FBI asserts that nothing within FISA’s text is incompatible with continued judicial adherence to the state-secrets privilege. Id. at 36. The FBI argues that if the Supreme Court has any doubt as to whether Congress intended to displace the state-secrets privilege, the Court should interpret Section 1806(f) in favor of retaining the privilege. Id. at 42.
The FBI notes that the state-secrets privilege is a time-honored privilege acknowledged by the Supreme Court and is supported by the Constitution and common law. Brief for Petitioners at 35. The FBI reasons that, under principles of statutory interpretation, the state-secrets privilege must take priority over Section 1806(f). Id. at 42. The FBI observes that the state-secrets privilege is established by Article II of the United States Constitution, which grants the President of the United States the executive power to manage the country’s foreign affairs. Id. at 43. The FBI contends that under Article II, the executive branch’s ability to protect state secrets is essential to the President’s responsibilities. Id. at 44. According to the FBI, all three branches of government have recognized that the executive branch has this power to prevent disclosure of information that would harm national security. Id. at 43. Additionally, the FBI identifies that the Supreme Court has supported the executive branch’s ability to protect state secrets in previous cases, such as when the Court found that the President has access to intelligence that should not be communicated to the general public in Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp. Id. at 44–45. Therefore, the FBI asserts that courts should not be permitted to review and invalidate actions of executive privilege based upon information that should remain confidential. Id. at 45.
Respondent Fazaga et al. (“Fazaga”) counters that, under principles of statutory interpretation, the plain text of Section 1806(f) grants courts the authority to investigate government surveillance, through the powers of Congress. Brief for Respondents at 42–43. Fazaga contends that FISA’s procedures do not interfere with the executive branch’s authority under Article II of the United States Constitution because Congress has the authority to create legislation that limits the executive branch’s power pertaining to domestic electronic surveillance. Id. at 58–59. Fazaga argues that the FBI’s privileged information includes electronic surveillance of Americans; and, the Supreme Court has previously acknowledged Congress’s power to adopt mechanisms shielding Americans from invasion of privacy in United States v. U.S. District Court (Keith). Id. at 58–59. Fazaga asserts that when Congress has passed a specific regulation such as FISA, the executive branch’s powers under Article II of the United States Constitution do not give it the sole authority to control this area of the law. Id. at 59. Thus, Fazaga argues that Congress has the power to displace the state-secrets privilege and require ex parte, in camera judicial review so that the Court may consider the legality of domestic electronic surveillance. Id.
Moreover, Fazaga reasons that the state-secrets privilege does not warrant dismissal of his claims based upon previous Supreme Court decisions. Brief for Respondents, Yassir Fazaga, et al. at 24. Fazaga argues that under the Court’s ruling in United States v. Reynolds, when the government invokes the state-secrets privilege, the Court should exclude the privileged information and continue the trial without it. Id. at 25. Fazaga also notes that the common law has always necessitated this approach. Id. Although the FBI argues it would need to invoke the secret information to defend itself against Fazaga’s claims, which could lead to the information’s disclosure, Fazaga contends that this potential disclosure does not justify dismissal of his claims. Id. at 27. Fazaga further argues that the Supreme Court’s decision in Totten v. United States does not support dismissal of his claims. Id. at 25. Fazaga concedes that Totten prevents litigation when an individual or entity enters into a contract with the government and the case’s subject matter itself is a topic of state secret. Id. However, Fazaga contends that Totten does not apply to his claims because he never entered into a secret contract with the government and the subject matter of his case is not a state secret. Id. at 25–26. Accordingly, Fazaga asserts that he should have a chance to prove his claims without inclusion of the FBI’s privileged information. Id. at 26–27.
APPLYING THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)
The FBI asserts that Section 1806(f) of FISA is not invoked in this case. Brief for Petitioners at 22. The FBI identifies three situations in which an individual may invoke Section 1806(f) of FISA: (1) when the government gives notice to an individual of its plan to utilize electronic surveillance information against that person in a legal proceeding; (2) when an individual uses Section 1806(e) of FISA to suppress the use of FISA material against themselves in a proceeding; and (3) a situation guaranteeing that an individual cannot avoid Section 1806(f)’s procedures by attempting to suppress or gain access to FISA materials by invoking other federal or state statutes. Id. at 30. Since the government has not specified an intention to use its privileged information against Fazaga in a proceeding, the FBI contends that Section 1806(f)’s procedures cannot be used to determine the merits of Fazaga’s claims. Id. at 22. The FBI further argues that no language in Section 1806(f) establishes a methodology for litigating an entire case. Id. at 32. According to the FBI, proceedings under Section 1806(f) should only result in the grant or denial of a “motion” or a “request” regarding admissibility of surveillance evidence. Id. The FBI contends that the words “motion” or “request” should be construed as synonyms and that Fazaga’s claims for relief do not constitute such a “motion” or “request.” Id. at 29. Consequently, the FBI asserts that Section 1806(f) proceedings should not result in the award of a judgment of the merits of Fazaga’s claims. Id. at 32.
Fazaga counters that even if the state-secrets privilege supports dismissal of his claims, FISA supplants that privilege and necessitates ex parte, in camera review. Brief for Respondents at 33. Fazaga notes that courts must use FISA’s procedures when (1) the government seeks to use information or evidence that the Attorney General contends must stay confidential due to national security interests or (2) an individual desires access to the privileged information to file a lawsuit alleging unlawful government surveillance. Id. at 34. According to Fazaga, both circumstances apply to this case. Id. Fazaga asserts that the first condition is met by the FBI’s motion to dismiss because the FBI seeks to use its secret information to dismiss Fazaga’s claims. Id. at 35. The second condition is also satisfied, Fazaga contends, because his claims for relief constitute a “request” to acquire the FBI’s information gathered via electronic surveillance. Id. at 39. Therefore, Fazaga asserts that his claim for relief independently triggers the ex parte, in camera review that FISA requires. Id. at 40.
BALANCING RELIGIOUS LIBERTY AND NATIONAL SECURITY INTERESTS
The Federal Bureau of Investigation (“FBI”) argues that disclosure of electronic surveillance information obtained under FISA could result in considerable harm to national security interests, and that the executive branch relies on the state-secrets privilege to protect national security information. Brief for Petitioners at 20-21, 25. The FBI asserts that the government invoked the state-secrets privilege to prevent disclosure of the privileged information in the same manner that any other individual would invoke an evidentiary privilege. Id. at 25. Furthermore, the FBI contends that, contrary to Fazaga’s claims, it is trying to prevent the use of its secret information in a proceeding, as opposed to utilizing the information to defend itself against Fazaga’s claims. Id. The FBI also argues that if the Supreme Court were to uphold the Court of Appeals’ decision to read Section 1806(f) of FISA as excluding information acquired through video surveillance, the government could not adequately protect national security information from “inventive litigants” seeking to circumvent the privilege. Id. at 21. The FBI further contends that the Court of Appeals’ reading of Section 1806(f) of FISA would allow courts to displace the state-secrets privilege so that courts can review privileged information. Id. Accordingly, the FBI maintains that FISA cannot displace the state-secrets privilege because Section 1806(f) cannot ensure that its in camera procedures would guarantee that national security interests are protected. Id. at 38.
Asian Americans Advancing Justice - Asian Law Caucus et al. (“Asian Americans Advancing Justice”), in support of Fazaga, assert that the United States government has a history of spying on religious minorities and explain that the case has consequences for the future of video surveillance. Brief of Amicus Curiae Asian Americans Advancing Justice - Asian Law Caucus et al., in Support of Respondent at 29-32, 36. Asian Americans Advancing Justice contend that Muslims have faced scrutiny by the United States and that September 11, 2001, marked a turning point for even heightened targeted surveillance against Muslim-Americans. Id. at 5-6. The group argues that the United States government continues “suspicion-less surveillance” of Muslim communities despite only having evidence of religion or national origin with perpetrators of the 9/11 attacks. Id. at 14. Privacy and Surveillance Accountability (“PSA”), in support of Fazaga, argues that the government intrudes on individual privacy when it collects bulk data from Americans. Brief of Amicus Curiae Privacy and Surveillance Accountability, in Support of Respondent at 8. PSA contends that the National Security Agency misrepresented how much data it collected and instead employed overbroad data collection schemes. Id. PSA argues that the government circumvents the warrant requirement located in the Fourth Amendment because the FBI has withheld or misrepresented information that was detrimental to its case. Id. at 10-11.
FUNCTIONING OF THE JUDICIAL SYSTEM
FBI Agents J. Stephen Tidwell and Barbara Walls “(Agents”) argue that the Court should uphold the government’s invocation of the state-secrets privilege because of private defendant interests. Brief for Respondents J. Stephen Tidwell and Barbara Walls, in Support of Petitioners at 16-17. The Agents reason as the government asserted the state-secrets privilege, Tidwell and Walls cannot present evidence that counters Fazaga’s assertion that the agents engaged in unconstitutional religious discrimination because the agents cannot access or introduce privileged information as evidence. Id. As such, the Agents contend that they cannot properly defend themselves against Fazaga’s religious discrimination contentions. Id. at 15.
Professor Barry Siegel, in support of Fazaga, argues that the judicial branch should review claims of state-secret privilege because the judiciary is well-equipped to handle matters of national security. Brief of Amicus Curiae Barry Siegel, in Support of Respondents at 8-9. Siegel argues that the executive branch continues to over-rely on the privilege and overprotect classified materials. Id. at 18. James Dempsey and Sharon Bradford, in support of Fazaga, argue that courts have a responsibility to protect against the executive branch’s encroachment on individual liberties. Brief of Amicus Curiae James Dempsey and Sharon Bradford, in Support of Respondents at 4. Dempsey and Bradford contend that courts routinely look at classified documents ex parte and in camera without disrupting the balance between national security interests and individual liberties. Id. at 11.
- Debra Cassens Weiss, SCOTUS Will Hear Case Involving FBI Surveillance of Muslim Community and State Secrets Privilege, ABA Journal (June 7, 2021).
- Andrew Hamm, Two Cases on the State-Secrets Privilege, SCOTUSblog (Jan. 22, 2021).
- Rohini Kurup, Supreme Court to Hear State Secrets Case on FBI Surveillance, Lawfare (Sept. 15, 2021).