Supreme Court Considers State-Secrets Privilege in Muslims’ Surveillance Lawsuit Against FBI

The U.S. Supreme Court is seen in Washington on Oct. 4, 2021. Mandel Ngan/AFP via Getty Images

An appeals court was wrong to revive a stalled lawsuit against the FBI that was based on a claim that the agency discriminated against Muslims by targeting them in a counterterrorism investigation, the Biden administration told the Supreme Court on Nov. 8.

The hearing in FBI v. Fazaga, court file 20-828, ran 47 minutes over the allotted 80.

Former imam Yassir Fazaga and two other Muslim men from California sued the FBI and several individual agents, claiming the agency targeted Muslims for surveillance because of their religion as part of a program called Operation Flex. In the investigation, former FBI informant Craig Monteilh, who posed as a Muslim convert, recorded conversations with Muslims.

At the urging of the FBI, the federal district court threw out the Muslims’ First Amendment-based free exercise and religious discrimination claims, citing the state-secrets evidentiary privilege, a doctrine recognized in U.S. v. Reynolds (1953) that allows the government to withhold sensitive evidence in a case if disclosing it would imperil national security.

The U.S. Court of Appeals for the 9th Circuit reversed, holding that the Foreign Intelligence Surveillance Act (FISA) of 1978 establishes procedures—such as allowing the court to conduct a closed-door review of the lawfulness of the surveillance—for people to try to suppress FISA evidence that will be introduced against them. The FBI and several individual FBI agents appealed to the Supreme Court, which agreed on June 7 to hear the case.

The FBI argued in its petition to the Supreme Court that the appeals court decision endangers national security. In the petition, it asked the high court to decide: “Whether Section 1806(f) displaces the state-secrets 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 legal term “in camera” refers to a hearing conducted in private before a judge; an “ex parte” decision is one made by a judge without requiring all of the parties to the dispute to be in attendance.

Three FBI agents—Paul Allen, Kevin Armstrong, and Pat Rose—argued in a brief that allowing the federal district court to resolve their claims in secret would violate their Seventh Amendment right to have the claims decided by a jury. In its “adventurous construction,” the 9th Circuit overreached, “purporting to find— buried in a single paragraph of FISA—a radical congressional mandate to do away with jury trials in civil rights cases that touch on state-secrets evidence.”

Two FBI supervisors, J. Stephen Tidwell and Barbara Walls, argued in their brief that the 9th Circuit’s approach “raises grave constitutional questions” and ignores their “right to be heard in their own defense” and their “right to a jury determination of factual disputes material to their liability.” Had the FBI not invoked the state-secrets privilege, the supervisors say they would have defended themselves by asserting they had legitimate reasons for the investigation.

In oral arguments before the Supreme Court, Deputy Solicitor General Edwin Kneedler said the privilege “is firmly grounded in the Constitution and the common law and is critical to safeguarding the national security.”

The 9th Circuit adopted a “novel interpretation” of FISA requiring the district court “to adjudicate the merits of plaintiffs’ challenge using the very information that is covered by the privilege.”

Justice Stephen Breyer said dismissing Fazaga’s claims without allowing the district court judge to review the evidence would be imprudent.

“My point is there should be a way to look at the information ... and decide what to do,” Breyer said.

Representing individual FBI agents, attorney Catherine Mary Agnes Carroll said “the government’s assertion of the state-secrets privilege deprives the individual defendants of a valid defense.”

Justice Sonia Sotomayor suggested to the attorney for Fazaga, Ahilan T. Arulanantham, that the Supreme Court could send the case “back for the court below to decide how state secrets interact with a motion to dismiss.”

Citing similar remarks by Justices Elena Kagan and Breyer at the hearing, Justice Brett Kavanaugh also said the case could be remanded to the 9th Circuit for the various issues to “be fleshed out.”

Justice Samuel Alito asked Arulanantham if, during an “ex parte in camera review” of the information the government claims is sensitive and therefore covered by the state-secrets privilege, “the judge says this was illegal because it was based on religion.”

Does that end the case for Carroll’s clients? Alito asked. “Isn’t that a violation of ... their due process rights?”

The lawyer refused to take a position. “We have deliberately not said in our briefing whether we think that’s true or not.”

Alito responded: “That’s the Star Chamber. I mean, a judge in camera ex parte ... not only without the participants—the presence of the defendants, without the presence of their attorneys, determines that they violated ... the plaintiff’s First Amendment rights.”

In English history, the monarch-directed Court of Star Chamber, which was abolished in 1641, was infamous for its arbitrariness and imposition of cruel punishments. In American law, the term is shorthand for the arbitrary use of judicial power.