Shhh! The State Has a Secret!

By Steven Ellison, Esq. on March 08, 2022 | Last updated on May 05, 2022

It's rare to get a unanimous decision out of the Supreme Court these days. But when it comes to secrets, the Supreme Court seems good at keeping them. For now.

On March 4, the Court cleared the way for the FBI to argue in a class action brought by a group of American Muslims that their case must be dismissed because of national security interests. The plaintiffs in the FBI v. Fazaga case claim that they were illegally targeted for electronic surveillance because of their religion

The Facts of Fazaga v. FBI

Fazaga stems from a 2006 FBI undercover operation. The FBI sent an informant posing as a convert to Islam to infiltrate a southern California Mosque. The operation fell apart when members of the Mosque grew suspicious of the informant's fixation on terrorism and contacted the FBI.

When they learned about the surveillance operation, three members of the Mosque sued the FBI. Although they claimed that they could prove their case based on available evidence, the FBI argued that it could not defend itself without damaging national security. The FBI asked that the entire case be dismissed under the state secrets privilege.

The State Secrets Privilege Under Reynolds

The "modern" interpretation of the privilege comes from the 1953 case, United States v. Reynolds. In Reynolds, widows of civilians who died in a military crash sued the government. They demanded that the government turn over its accident report. The government refused, claiming that the report contained secret information about new military equipment. The Supreme Court ruled that the state secrets privilege applied and denied the widows access to the report.

(As an aside, it turns out the military lied. When it was declassified in 2004, the report contained no information about secret military equipment. But it did contain evidence that the military's screwup resulted in the deaths of the civilians)

The FBI went further in Fazaga. It didn't ask just to hide a particular report. It asked the court to dismiss the entire class action. And the district court agreed.

FISA's Impact on the State Secrets Privilege

But the appellate court reversed based on a 1978 statute, the Foreign Intelligence Surveillance Act (FISA). FISA creates procedures that the government is supposed to follow when it wants to conduct foreign intelligence surveillance, as well as standards for courts to use when evaluating what's discovered. The appellate court ruled that in setting out those standards, Congress intended to displace (lawyers would say "preempt") the remedy of dismissal on state secret grounds.

Unanimous Fazaga Court

The Supreme Court unanimously rejected this broad interpretation of FISA. In an opinion written by Associate Justice Samuel Alito, the court ruled that the procedures set out in FISA do not prohibit the dismissal of a case, even if the FBI obtained evidence illegally. Instead, the focus under the privilege is on the impact of the disclosure of the evidence on national security. Nothing in FISA, the court found, prevents a court from dismissing a case if the government is able to show that proceeding with it compromises national security.

The likely reason why the Fazaga decision is unanimous is because it is so narrow. The court didn't rule that the evidence was illegally obtained. Nor did it determine that the case was properly dismissed. Rather, it ruled only that the statute didn't replace dismissal as a remedy for the government under the state secrets privilege.

Back to Square One in the Lower Courts

The result is that the parties go back to the lower court and essentially start the case over. What should not be lost is the practical impact on the parties. The FBI conducted the challenged surveillance in 2006. That was more than 15 years ago. We will see if the plaintiffs have the endurance and the resources to continue the fight.

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