CASE PREVIEW

Justices will again confront state-secrets privilege in lawsuit challenging FBI surveillance of mosques

The FBI called it “Operation Flex”: a counterterrorism investigation in southern California. When three of the Americans targeted by the FBI learned of the investigation, they filed a lawsuit in federal court, alleging that the FBI and its agents had discriminated against them based on their religion and had conducted illegal searches. That lawsuit is now before the Supreme Court, which will hear argument Monday on whether it should be dismissed under the “state secrets” privilege or whether a provision of the Foreign Intelligence Surveillance Act allows it to continue.

The case, Federal Bureau of Investigation v. Fazaga, is the second case this term in which the justices will consider the state-secrets privilege, a doctrine that allows the government to withhold information in litigation when disclosing it would compromise national security. The first case, United States v. Zubaydah, involves how the privilege applies to a request for information about CIA torture at offshore “black sites.”

Like Zubaydah, Fazaga has its roots in the years after the Sept. 11, 2001, attacks. In 2006 and 2007, the FBI paid Craig Monteilh, a former fitness instructor, to act as a confidential informant to gather information about Muslims in Orange County, California. Monteilh attended services at local mosques, where he told worshippers that he wanted to convert to Islam and collected the names and license-plate numbers of people at the mosques. He also made audio or video recordings of almost all of his conversations with people in the local Muslim community, and he sometimes left recording devices behind to capture conversations after he left. Members of the community eventually became concerned that Monteilh was expressing interest in violence – so much so that one community leader reported him to the FBI.

Monteilh’s identity and work as a confidential informant was revealed two years later, in connection with an immigration fraud case that the government eventually asked the court to dismiss. That led the plaintiffs in this case – Yassir Fazaga, an imam in southern California, and two other practicing Muslims, Ali Uddin Malik and Yasser AbdelRahim – to file a class-action lawsuit against the FBI and five of its agents. They contended that the FBI had spied on them and other Muslims in Orange County, without a warrant, only because of their religion.

The government argued that the plaintiffs’ claims alleging religious discrimination should be dismissed under the state-secrets privilege, because allowing the case to go forward would risk the disclosure of information that could harm national security. The government asserted the privilege to protect three different kinds of evidence: the targets of its investigation; the reasons for the investigation; and the sources and methods used by the government in the investigation. The district court agreed and dismissed the plaintiffs’ religious discrimination and search claims.   

The plaintiffs appealed to the U.S. Court of Appeals for the 9th Circuit, which (among other things) reversed the district court’s dismissal of the religious-discrimination claims. The 9th Circuit determined that, instead of dismissing claims when the government invokes the state-secrets privilege, courts should use the procedures outlined in Section 1806(f) of the Foreign Intelligence Surveillance Act to determine whether the surveillance was legally authorized and conducted. That provision establishes a mechanism for a federal district judge to review sensitive surveillance information behind closed doors if a regular public hearing would harm national security. If the district judge determines that the surveillance was illegal, the government forfeits the right to object to its disclosure. The district judge’s confidential review, the 9th Circuit explained, should include not only whether the FBI violated FISA, but also whether the FBI violated the Constitution or any of the other laws on which the plaintiffs relied. The FBI appealed to the Supreme Court last year, and the justices agreed in June to take up the case.

In its brief on the merits, the FBI warns that allowing the 9th Circuit’s decision to stand would “substantially weaken[] the government’s ability to safeguard national-security information.” More specifically, the bureau continues, the procedures outlined in Section 1806(f) apply only in three limited circumstances, none of which are present in this case. There is nothing in the text of the statute to suggest that Congress intended for it to be used to determine the merits of a litigant’s claim in secret, rather than the narrower question of whether surveillance was legal under FISA so that a motion on the admissibility of evidence must be granted or denied. Nor, the FBI observes, does the statute say anything about the state-secrets privilege, much less suggest that the government cannot rely on the privilege to protect national security by shielding state secrets from being disclosed. The 9th Circuit’s decision, the FBI cautions, “creates a roadmap for inventive litigants to avoid the state-secrets privilege whenever electronic surveillance allegedly is involved” and to have the district court decide claims on the merits by itself, in secret.

Two FBI supervisors who were named in the lawsuit — J. Stephen Tidwell and Barbara Walls — tell the justices that the 9th Circuit’s approach raises, at the very least, “grave constitutional questions.” If the FBI hadn’t asserted the state-secrets privilege, they say, they would have tried to defend themselves by arguing that they had legitimate reasons for the investigation. But the government’s assertion of the state-secrets privilege, coupled with the grant of authority for the district court to resolve the merits of the claims in secret, would deprive Tidwell and Walls of their right to do so. When, as here, there are two competing interpretations of Section 1806(f), Tidwell and Walls conclude, the justices should not “assume that Congress intended an interpretation that raises serious constitutional questions.”

Three other FBI agents named in the lawsuit – Paul Allen, Kevin Armstrong and Pat Rose – broach a different issue. They caution the justices that allowing the district court to decide their claims in secret would violate their Seventh Amendment rights to have their claims resolved by a jury.

In their brief on the merits, the plaintiffs detail the “deep harm” that the FBI’s actions caused them. Fazaga says that he “was forced to restrict the counseling he provided to his congregants for fear it was no longer private,” while Malik and AbdelRahim write that they became “afraid to practice their faith openly and to attend the mosques” that Monteilh had infiltrated. They frame the question before the court as whether their claim that the government and the FBI agents violated their constitutional rights “will ever receive its day in court.”

The state-secrets privilege, the plaintiffs explain, allows courts to exclude evidence from a proceeding. But they argue that the FBI can’t use the privilege as both a shield and a sword. Here, the plaintiffs are not the ones attempting to introduce any privileged information; rather, it is the FBI claiming that privileged information would be essential to its defense – yet the information purportedly must be kept secret for national-security reasons. That rationale that has never been used to justify dismissal of a lawsuit alleging constitutional violations, the plaintiffs argue. And under these circumstances, they continue, the procedures in Section 1806(f) displace the judge-made law surrounding the state-secrets privilege, so even if the privilege would otherwise permit the dismissal of their religious-discrimination claims, the statute controls and allows their claims to go forward.

This article was originally published at Howe on the Court.