Government can invoke state secrets privilege in lawsuit alleging unlawful surveillance

The Supreme Court on Friday dealt a blow to a lawsuit filed by three Muslim men who claim that they were targeted by an FBI counterterrorism investigation because of their religion. In a narrow but unanimous ruling, the justices held that a provision of the Foreign Intelligence Surveillance Act does not trump the “state secrets” privilege, a doctrine that allows the government to withhold information in litigation when disclosing it would compromise national security. However, the justices left broader questions about the interpretation of FISA for another day.

The court’s opinion in Federal Bureau of Investigation v. Fazaga was the second in two days dealing with the state secrets privilege. On Thursday, in United States v. Zubaydah, a divided court ruled that the privilege applies to a request for information about CIA torture at offshore “black sites.”

Both cases have their roots in the federal government’s efforts to respond to the Sept. 11, 2001, attacks – in Zubaydah, overseas, and in the United States in Fazaga.

In 2006 and 2007, the FBI paid a confidential informant to gather information about Muslims in Orange County, California. The informant attended services at local mosques, collected the names and license-plate numbers of people there, and recorded almost all of his conversations with people in the local Muslim community. The informant’s identity and work were eventually revealed two years later, prompting the plaintiffs in this case – Yassir Fazaga, an imam in southern California, and two other practicing Muslims, Ali Uddin Malik and Yasser Abdel Rahim – to file a class-action lawsuit against the FBI and five of its agents. They claimed that the FBI had spied on them and other Muslims in Orange County, without a warrant, only because of their religion.

The federal government invoked the state-secrets privilege and asked the district court to dismiss most of the men’s claims. Allowing the claims to go forward, the government contended, would require the disclosure of counter-intelligence information that would threaten national security. The district court agreed and dismissed the claims, but the U.S. Court of Appeals for the 9th Circuit reinstated them. It held that Section 1806(f) of FISA trumped the state secrets privilege. That provision outlines the procedure for a district court to consider the legality of electronic surveillance conducted under FISA and establishes a mechanism for a federal judge to review sensitive surveillance information behind closed doors if a regular public hearing would harm national security. The federal government came to the Supreme Court, which on Friday reversed the 9th Circuit’s ruling in an opinion by Justice Samuel Alito.

The government and the men had offered the Supreme Court two different interpretations of the FISA provision, Alito noted. The government argued that the provision applies only when a litigant challenges whether the government’s surveillance evidence can be admitted, while the men countered that the law can also apply when a litigant wants to obtain that information.

But even under the men’s theory, Alito explained, FISA does not trump the state secrets privilege, and the 9th Circuit’s ruling cannot stand. First, the text of FISA does not mention, much less repeal, the state secrets privilege – which, Alito wrote, is “strong evidence” that the privilege is still available.

Second, Alito reasoned, there is no reason why FISA and the state secrets privilege cannot coexist. Although the privilege will rarely be invoked in FISA cases, courts must make two very different inquiries when FISA and state secrets are involved. For the former, the important question is whether the surveillance was lawfully authorized and conducted, while for the latter the question is whether the disclosure of the evidence would harm national security.

Third, Alito noted, the procedures for invoking FISA and the state secrets privilege are different: If the government wants the trial judge to review the evidence in private under FISA because it believes that disclosure will harm national security, it must submit an affidavit from the attorney general, while the head of the affected agency can invoke the state secrets privilege. “For those reasons,” Alito wrote, “we conclude that Congress did not eliminate, curtail, or modify the state secrets privilege when it enacted” FISA.

Alito stressed that Friday’s ruling “addresses only the narrow question” whether FISA “displaces the state secrets privilege.” Because of the justices’ conclusion that it does not even under the men’s theory of the law, Alito continued, the court’s decision does not weigh in on whether the government’s theory or the men’s is the correct interpretation of FISA – or any other questions about whether the government’s evidence is privileged or whether the district court properly dismissed the men’s claims. Instead, the court sent the case back to the lower courts for additional proceedings, presumably including on the men’s remaining claims.

This article was originally published at Howe on the Court.