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FBI v. Fazaga

Background

Yassir Fazaga, a former Imam at the Orange County Islamic Foundation in Mission Viejo, California, is the lead plaintiff in a three-member lawsuit representing American Muslim leaders in Southern California (“Plaintiffs”). After 9/11, U.S. intelligence agencies, spearheaded by the Federal Bureau of Investigations (“FBI”), systematically infiltrated mosques throughout the U.S., including in Southern California. These intelligence and law enforcement agencies also programmatically targeted American Muslims for surveillance because of their religion, including the three members in this class action.

On February 21, 2011, Plaintiffs sued the FBI under Bivens and Section 1810 of FISA for unconstitutional searches resulting from the FBI’s use of mass surveillance and for religious discrimination, violating their First, Fourth, and Fifth Amendment rights. Among other allegations, they asserted that the FBI embedded a confidential informant in their communities who surveilled them solely based on their religious beliefs. The government responded by asserting the state secrets privilege on the religious discrimination claims and qualified immunity on the FISA claims under Section 1810. The government sought to dismiss both the religious profiling and FISA claims. The district court agreed that the state secrets privilege applied and dismissed the case in its entirety. The Ninth Circuit later reversed, finding that even if the state secrets privilege applied, it did not mandate dismissal.

What is the State Secrets Doctrine?

Since the Civil War, in Totten v. United States (1876), the Supreme Court recognized an evidentiary privilege that allows the government to exclude information that poses a “reasonable danger” to national security, even if doing so will necessitate dismissal of a case.

Seventy-two years later, an Air Force B-29 Superfortress crashed while conducting classified tests of “secret electronic equipment,” killing civilian contractors and military personnel. Widows of the three civilian contractors brought a Federal Tort Claims Act (FTCA) lawsuit. The government invoked the military-secrets privilege when the widows sought the official accident report. The Court in United States v. Reynolds (1953) required a reasonable demonstration of the privilege, and held that the government may withhold information for reasons of national security even when that information is vital to the plaintiff’s case. The Court added that plaintiffs should be able “to adduce the essential facts as to causation without resort to material touching upon military secrets.”

In 1995, the Eighth Circuit Court of Appeals in Black v. United States explained that the state secrets privilege has generally applied to information that would result in “impairment of the nation’s defense capabilities, disclosure of intelligence-gathering methods or capabilities, and disruption of diplomatic relations with foreign governments, or where disclosure would be inimical to national security.”

In 2007, the Ninth Circuit Court of Appeals in Al-Haramain Islamic Found., Inc. v. Bush (Al-Haramain) noted that “simply saying ‘military secret,’ ‘national security,’ or ‘terrorist threat’ or invoking an ethereal fear that disclosure will threaten our nation is insufficient to support the privilege.” While Al-Haramain illustrates that not all classified information is necessarily privileged, there are no precise definitions for “military secrets,” “national security,” and “terrorist threat”—terms that grow broader in a highly globalized, technologically advanced, post-9/11 environment.

Applications of the State Secrets Doctrine

There are two applications to the State Secrets Doctrine. The first is known as the “Totten bar,” which deems claims nonjusticiable when the subject matter of the lawsuit is itself a matter of state secrets. The second application is the “Reynolds privilege,” which, when successfully asserted, has the effect of removing the privileged “state secret” evidence from litigation.

In seeking to dismiss the religious profiling claims, the government in Fazaga asserted the Reynolds privilege, not the Totten bar.

In 2010, the Ninth Circuit listed three circumstances under which a court may dismiss a claim under the Reynolds privilege. First, if the plaintiff cannot prove the elements of a claim without the privileged evidence. Second, when, in seeking to assert a valid defense to a claim, the defendant may need to rely on or risks disclosure of privileged evidence. Finally, when litigating the case without the privileged evidence presents “an unacceptable risk of disclosing state secrets” because the nonprivileged evidence is inextricably intertwined with “state secrets.”

When granting the FBI’s motion to dismiss the religious discrimination claims, the district court in Fazaga based its decision on the second and third grounds. The district court also dismissed the surveillance claims on its own motion for the same reasons.

Resuscitated on Appeal by the Ninth Circuit

On February 28, 2019, the Ninth Circuit Court of Appeals reversed the district court’s dismissals. First, the Ninth Circuit found that the government failed to follow the strict procedural requirements when claiming the Reynolds privilege regarding the religious discrimination claim. Second, the district court erred in applying the Reynolds privilege on its own motion and in dismissing the surveillance claims. Third, Congress displaced the “dismissal remedy” under the Reynolds privilege as applied to electronic surveillance when it passed the Foreign Intelligence Surveillance Act (FISA or “FISA Act”), and Section 1806(f) of the FISA Act allows a district court to resolve the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence secretly (in camera) and only in the presence of the government attorneys (ex parte).

The Ninth Circuit emphasized that the FISA Act only displaced the “dismissal remedy” under the state secrets doctrine, not the doctrine itself. The government may choose to reassert the Reynolds privilege after the district court has reviewed the alleged “state secrets” evidence (1) if Plaintiffs sought to apply FISA’s procedures to secret information not relating to electronic surveillance, (2) if electronic surveillance is no longer part of the case, or (3) as a backstop measure “in the unprecedented event that a district court does order disclosure.”

The Central Legal Question for the Supreme Court

On December 17, 2020, the government filed a petition for a writ of certiorari asking the U.S. Supreme Court whether Section 1806(f) of the FISA Act 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 U.S. Supreme Court granted certiorari on June 7, 2021.

What is the FISA Act?

In 1975, the U.S. Senate appointed the Church Committee to investigate the legality of intelligence operations by the Central Intelligence Agency (CIA), National Security Agency (NSA), Federal Bureau of Investigation (FBI), and the Internal Revenue Service (IRS). The Church Committee revealed that U.S. intelligence agencies had engaged in egregious covert action against foreign leaders and U.S. citizens alike. That included torture, mass surveillance of members of the Civil Rights Movement and other U.S. citizens, assassination plots, and propaganda campaigns in the public media.

The Church Committee’s investigations led to the passage of the Foreign Intelligence Surveillance Act (FISA or “FISA Act”) in 1978, codified at 50 U.S.C. §§ 1801-1885c. The statute created two specialized Article III courts: the Foreign Intelligence Surveillance Court (FISC or “FISA Court”) and the Foreign Intelligence Court of Review (FISCR), which hears FISC appeals.

Significant technological innovations over the years led to dramatic gaps and shifts in the law. Prior to 9/11, the FISA Court functioned as a warrant-granting body. Its role was to examine requests for surveillance orders (1978), for physical searches (1994), for using pen register and trap and trace (1998), and for collecting certain business records (1998). Between 1978 and 2001, the FISA Court issued more than 14,000 orders and just one opinion. All applications were sealed, and all procedures were conducted secretly (in camera) and only in the presence of the government’s agents and attorneys (ex parte).

After 9/11, Congress passed the USA PATRIOT Act of 2001 (“PATRIOT Act”), which made significant changes to the law. The PATRIOT Act allowed for roving wiretaps (§ 206), changed the duration of certain FISC authorization orders (§ 207), increased the number of FISC judges to 11 (§ 208), expanded the scope of the FISA pen and trap provisions (§ 214), expanded the scope of the business records and tangible items provisions (§ 215), broadened the purpose of electronic and physical searches (§ 218), merged between intelligence and law enforcement (§ 504), and broadened the definition of “electronic surveillance” (§ 1003).

In 2004, Congress passed the Intelligence Reform and Terrorism Prevention Act (IRTPA), which added the “lone wolf” provision, eliminating the requirement of showing evidence that linked surveillance targets to an identifiable foreign power or terrorist organization. In 2008, Congress passed the FISA Amendments Act, under which the government need only show that gathering foreign intelligence is a “significant purpose” of the surveillance, eliminating the less lenient “primary purpose” requirement.

The FISA Act expanded the government’s power and ushered in an era of bulk and programmatic collection of U.S. persons’ and non-U.S. persons’ data. The FISA Act also provides a means for judicial review of privileged “state secret” evidence in litigation without risking national security—in camera and ex parte.

The “Dismissal Remedy” Under the State Secrets Doctrine

To answer the question presented in Fazaga, the Supreme Court will consider how it has understood and applied the “dismissal remedy” under the state secrets privilege (1) pre-Reynolds, (2) following Reynolds and before FISA’s enactment, and (3) post-FISA.

Both English and American common law found the outright dismissal of lawsuits involving sensitive national security information to be a drastic substantive remedy. English cases around the Founding treated the state secrets privilege as an evidentiary privilege, where lawsuits continued without the excluded evidence. All the pre-Reynolds decisions also apply state secrets as an evidentiary privilege, not a substantive remedy—even in Totten.

The Supreme Court in Totten, despite dismissing the lawsuit, compared the state secrets privilege to the established evidentiary privileges involving spouses, attorneys and their clients, and clergy and their parishioners. The Court dismissed Totten because the entire subject matter of the lawsuit was a state secret: a suit to recover secretly promised wages of a Confederate spy orally commissioned by President Abraham Lincoln. The Supreme Court reiterated in Tenet v. Doe (2005) and General Dynamics Corp. v. U.S. (2011) Totten‘s narrow application to the secrecy inherent in certain government contracts. Thus, pre-Reynolds caselaw does not support outright dismissal based on the state secrets privilege.

Caselaw following Reynolds and before FISA’s enactment also treated state secrets as an evidentiary privilege and did not support dismissal. Prior to FISA, courts actively sought to avoid dismissal by ensuring the government properly invoked the state secrets privilege and reviewing the privileged evidence in camera and ex parte.

Even after FISA’s enactment, courts have avoided dismissing lawsuits by continuing to focus on the evidentiary question raised by the state secrets privilege. Courts were more willing to impute a dismissal remedy in the state secrets doctrine after 9/11. Most of the decisions concluding with dismissal, however, considered the privileged evidence in camera on the merits before dismissing the lawsuit. Cases that ended in dismissal involved plaintiffs who could not make out the elements of their claim without the excluded privileged evidence. Or claims involving extraordinary rendition, “enhanced interrogation techniques,” and defamation, where the truth or falsity of statements about secret information is an essential element of the claim. The few district courts that have elected to dismiss lawsuits without inspecting the privileged evidence and assessing the merits of the claims have ruled inconsistently with established state secrets jurisprudence.

Is “National Security” an Excuse for Racial and Religious Profiling?

The underlying facts in Fazaga are alarming. They portray a government that invidiously profiles and permissively spies on U.S. persons with impunity and without regard for constitutional protections for speech and against discrimination. “Islam is a threat to our national security,” is a declaration allegedly made by several FBI agents. A litany of instructions were purportedly given by FBI agents to a confidential informant that included collecting contact information, license plates, and compromising information of American Muslim worshipers to intimidate and blackmail them into informing for the FBI. The FBI supposedly gathered hundreds of phone numbers, thousands of email address, thousands of hours of audio recordings of private conversations, and hundreds of hours of video recordings captured from inside mosques, the sanctity of homes, and private businesses. At no point did the government remotely suspect the targets of the surveillance of any wrongdoing, neither general nor particularized. The FBI targeted American Muslims because of their religious affiliations and observance.

The underlying facts in this case are not unique to the Plaintiffs in Fazaga. The attorney general’s guidelines for FBI investigations post-9/11 ushered an era of non-predicated investigations that seek targets absent any information indicating criminality. The FBI need only articulate that its purpose is to protect against criminal or national security threats, or to collect foreign intelligence. There is no requirement for probable cause, reasonable belief, reasonable suspicion, or any evidence.

There is a steep human cost suffered by the targets of the dramatic changes in law and policy after 9/11.

Has the government’s reaction to 9/11 facilitated profiling based on constitutionally protected characteristics? Should the actions of the executive branch endure legal scrutiny in our tripartite system of government? Must courts dismiss claims when the government invokes the state secrets privilege without inspecting the privileged evidence and assessing the merits of the claim?

The Justices will hear arguments on Monday, November 8, 2021.

Facts of the Case (Oyez):

Respondents Sheikh Yassir Fazaga, Ali Uddin Malik, and Yasser AbdelRahim are three Muslim residents of Southern California who regularly attended religious services at the Islamic Center of Irvine. They filed a lawsuit in federal court alleging that the FBI had used a confidential informant to conduct a covert surveillance program for at least fourteen months to gather information at the Islamic Center based solely on their Muslim religious identity. Their claims included violations of the First Amendment’s Establishment Clause and Free Exercise Clauses; the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.; the equal protection component of the Fifth Amendment’s Due Process Clause; the Privacy Act, 5 U.S.C. § 552a; the Fourth Amendment; the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1810; and the Federal Tort Claims Act, 28 U.S.C. § 1346.

The U.S. Attorney General asserted the state secrets privilege with respect to evidence in the case and moved to dismiss the discrimination claims based on that privilege. It did not move to dismiss the Fourth Amendment or FISA claims based on privilege, but on other grounds. The district court dismissed all but one of the claims on the basis of the state secrets privilege. The U.S. Court of Appeals for the Ninth Circuit reversed, holding that the district court should have reviewed any state secrets evidence in camera to determine whether the alleged surveillance was unlawful under FISA. The appellate court then denied a petition for a rehearing en banc.

Visit Oyez.

Question in the Case (Oyez):

Does Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 displace the state-secrets privilege and authorize a district court to resolve the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence?

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Ninth Circuit Decision

INTRODUCTION

Three Muslim residents of Southern California allege that, for more than a year, the Federal Bureau of Investigation (“FBI”) paid a confidential informant to conduct a covert surveillance program that gathered information about Muslims based solely on their religious identity. The three plaintiffs filed a putative class action against the United States, the FBI, and two FBI officers in their official capacities (“Government” or “Government Defendants”), and against five FBI agents in their individual capacities (“Agent Defendants”). Alleging that the investigation involved unlawful searches and anti-Muslim discrimination, they pleaded eleven constitutional and statutory causes of action.

Specifically, the Plaintiffs alleged violations of the First Amendment’s Establishment Clause and Free Exercise Clauses; the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.; the equal protection component of the Fifth Amendment’s Due Process Clause; the Privacy Act, 5 U.S.C. § 552a; the Fourth Amendment; the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1810; and the Federal Tort Claims Act, 28 U.S.C. § 1346.

The Attorney General of the United States asserted the state secrets privilege with respect to three categories of evidence assertedly at issue in the case, and the Government moved to dismiss the discrimination claims pursuant to that privilege. The Government expressly did not move to dismiss the Fourth Amendment and Foreign Intelligence Surveillance Act (“FISA”) unlawful search claims based on the privilege. Both the Government and the Agent Defendants additionally moved to dismiss Plaintiffs’ discrimination and unlawful search claims based on arguments other than the privilege. 

The district court dismissed all but one of Plaintiffs’ claims on the basis of the state secrets privilege—including the Fourth Amendment claim, although the Government Defendants had not sought its dismissal on privilege grounds. The district court allowed only the FISA claim against the Agent Defendants to proceed. Plaintiffs appeal the dismissal of the majority of their claims, and the Agent Defendants appeal the denial of qualified immunity on the FISA claim.

We conclude that some of the claims dismissed on state secrets grounds should not have been dismissed outright. Instead, the district court should have reviewed any state secrets evidence necessary for a determination of whether the alleged surveillance was unlawful following the secrecy-protective procedure set forth in FISA. See 50 U.S.C. § 1806(f). After addressing Defendants’ other arguments for dismissing Plaintiffs’ claims, we conclude that some of Plaintiffs’ allegations state a claim while others do not. Accordingly, we remand to the district court for further proceedings on the substantively stated claims.

BACKGROUND

At this stage in the litigation, we “construe the complaint in the light most favorable to the plaintiff[s], taking all [their] allegations as true and drawing all reasonable inferences from the complaint in [their] favor.” Doe vUnited States419 F.3d 1058, 1062 (9th Cir. 2005). “Conclusory allegations and unreasonable inferences, however, are insufficient to defeat a motion to dismiss.” Sanders vBrown504 F.3d 903, 910 (9th Cir. 2007).

Plaintiffs are three Muslims who were residents of Southern California: Sheikh Yassir Fazaga, Ali Uddin Malik,  and Yasser AbdelRahim. Fazaga was, at the times relevant to this litigation, an imam at the Orange County Islamic Foundation (“OCIF”), a mosque in Mission Viejo, California. Malik and AbdelRahim are practicing Muslims who regularly attended religious services at the Islamic Center of Irvine (“ICOI”).

The complaint sought relief against the United States, the FBI, and two federal officials named in their official capacities, as well as five individual Agent Defendants—Kevin Armstrong, Paul Allen, J. Stephen Tidwell, Barbara Walls, and Pat Rose—named in their individual capacities. Armstrong and Allen were FBI Special Agents assigned to the Orange County areas; Tidwell was the Assistant Director in Charge of the FBI’s Los Angeles Field Office from August 2005 to December 2007; Walls was the Special Agent in Charge of the FBI’s Santa Ana branch office, a satellite office of the FBI’s Los Angeles field office; and Rose was a Special Agent assigned to the FBI’s Santa Ana branch office.

Because of the sensitivity of the issues in this case, we particularly stress the usual admonition that accompanies judicial determination on motions to dismiss a complaint: the facts recited below come primarily from Plaintiffs’ allegations in their complaint. The substance of those allegations has not been directly addressed by the defendants. At this point in the litigation, the truth or falsity of the allegations therefore is entirely unproven. 

In addition to the facts alleged in the complaint, this opinion at some points refers to facts contained in two public declarations submitted by the Government in support of its invocation of the state secrets privilege.

Read the full opinion on CaseText.

Summary of Argument (Brief of Petitioner)

The court of appeals erred in holding that Section 1806(f ) displaces the state-secrets privilege and author-izes a district court to resolve, ex parte and in camera, the merits of an action by considering the privileged evidence. 

A. Section 1806(f ) provides an ex parte and in cam-era procedure for resolving procedural motions related to the suppression of FISA-obtained or FISA-derived evidence that the government seeks to use or disclose in a legal proceeding, not a procedure for deciding the merits of the underlying action. Section 1806(f )’s pro-cedures are available only in three limited circum-stances, none of which includes the filing of a civil ac-tion. And the only relief Section 1806(f ) authorizes, if the surveillance is found to have been unlawfully au-thorized or conducted, is to “suppress the evidence * * * or otherwise grant [a] motion” to “discover [or] obtain” it, not to issue a judgment on the merits. 50 U.S.C. 1806(f ) and (g). 

The court of appeals, however, held that Section 1806(f ) may be triggered whenever the government invokes the state-secrets privilege to exclude alleged FISA-obtained or FISA-derived evidence from a legal proceeding, on the ground that assertion of the privilege constitutes notice of the government’s intent “to enter into evidence or otherwise use or disclose” the privileged information “against an aggrieved person” in the proceeding. 50 U.S.C. 1806(c). But that conclusion seriously misunderstands the function of the state-secrets 

privilege and the effect of its invocation. The govern-ment invokes the state-secrets privilege for the same reason that any party asserts any evidentiary privilege: to prevent the introduction or disclosure of the privi-leged information, not to facilitate its use. Excluding evidence—not using that evidence—is how a litigant claiming any privilege vindicates the interest protected by that privilege. 

The court of appeals also concluded that a prayer for relief on the merits in a plaintiff ’s complaint may con-stitute a “motion or request * * * to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance” that would satisfy the third ground for triggering Section 1806(f ). 50 U.S.C. 1806(f ). But a prayer for relief is not a “motion.” And although it might be colloquially described as a “request,” it is nothing like a motion to suppress or comparable procedural motion at which Section 1806(f ) is aimed. 

Section 1806 as a whole, moreover, confirms that the third ground for invoking Section 1806(f ) covers only motions or requests concerning the government’s in-tended use or disclosure of FISA-obtained or FISA- derived evidence in a legal proceeding. The first two grounds apply (1) when the government provides notice, pursuant to Section 1806(c) or (d), of its intent to “use or disclose” such material against the aggrieved person in a proceeding, or (2) when the aggrieved person in-vokes Section 1806(e) to “suppress” such material. See 50 U.S.C. 1806(f ). The third ground serves as a back-stop to the first two, ensuring that an aggrieved person cannot circumvent Section 1806(f )’s in camera, ex parte procedures by seeking to suppress evidence or obtain discovery of FISA materials using “any other statute or 

rule of the United States or any State.” 50 U.S.C. 1806(f ) (emphasis added). 

Finally, the court of appeals’ ultimate conclusion is flawed. The court reasoned that Section 1806(f ) provides a mechanism for litigating a civil plaintiff ’s claims to fi-nal judgment. But nothing in Section 1806(f ) suggests that it was intended to be used to litigate, ex parte and in camera, the merits of a case. The result of Section 1806(f ) proceedings is not an award of judgment on the merits, but the grant or denial of a “motion” related to admissibility, for which the lawfulness of surveillance is the relevant rule of decision. 50 U.S.C. 1806(g). Con-ducting such a proceeding would be complicated enough when the federal government is a party to the claims; the practical impediments would be substantially mag-nified for claims between private parties, where neither party to a claim could participate in its adjudication. Sec-tion 1806(f )’s silence on those procedures is telling. 

B. In any event, even when Section 1806(f )’s proce-dures are properly invoked, they do not silently displace the state-secrets privilege. FISA does not suggest— directly or indirectly—any intent to preclude the gov-ernment from relying on the privilege to protect the na-tional security by removing state secrets from a case. The privilege is not mentioned in the text of Section 1806 or anywhere in the Act. Neither the court of ap-peals nor respondents have identified anything in FISA’s legislative history discussing the privilege. And nothing in the operation of Section 1806(f ) is incompat-ible with the continued vitality of the privilege. 

If there were any doubt that Congress did not dis-place the state-secrets privilege in Section 1806(f ), any ambiguity should be construed in favor of retaining the privilege. The state-secrets privilege is a longstanding 

feature of our legal system; its existence “has never been doubted.” 8 John Henry Wigmore, Evidence in Trials at Common Law § 2378(2), at 794 (John T. McNaughton rev. ed., 1961) (Wigmore). Even when the privilege is viewed as one recognized at common law, the Court will not find the common law to be displaced by statute absent a clear expression of congressional in-tent to do so. 

Moreover, the Court has explained that the “author-ity to classify and control access to information bearing on national security” is an aspect of executive power that “flows primarily from th[e] constitutional invest-ment of power in the President and exists quite apart from any explicit congressional grant.” Department of Navy v. Egan, 484 U.S. 518, 527 (1988). And the Court has repeatedly acknowledged that executive privileges, like the state-secrets privilege, that “relate[ ] to the ef-fective discharge of a President’s powers” are “consti-tutionally based.” United States v. Nixon, 418 U.S. 683, 710-711 (1974). 

Against that backdrop, neither Section 1806(f ) nor any other provision in FISA contains the sort of clear state-ment that would be required to conclude that Congress has attempted to abrogate the state-secrets privilege and bring about such a startling change in the Execu-tive’s authority to protect national-security information. 

Read the full brief.

Summary of Argument (Brief of Respondent)

Plaintiffs have asserted—and documented with declarations from Defendants’ own informant—that FBI agents violated their religious freedom rights by spying on them because of their religion. In response, Defendants rely on the state-secrets privilege to argue for dismissal of those claims without any adjudication of whether the Defendants’ surveillance was unlawful. Both this Court’s state-secrets jurisprudence and the law governing domestic electronic surveillance prohibit that result.

1. The district court erred in dismissing Plaintiffs’ religion claims under the state-secrets privilege. Like all other privileges, the common-law state-secrets privilege authorizes the exclusion of evidence. It deprives all parties of the evidence withheld. As with any privilege, its application may lead to dismissal where the plaintiffs cannot prove their claims without the excluded evidence, but plaintiffs must be given the opportunity to make their case, as they were in Reynolds itself.

The privilege does not support dismissal here. Defendants have not sought to exclude evidence from this case. They do not need to; only Defendants possess the secret information at issue, and Plaintiffs have disclaimed any intent to use it for their religious freedom claims. Defendants instead assert that Plaintiffs’ claims should be dismissed because Defendants need to use secret information in their own defense. But while the state-secrets privilege, when properly asserted, can justify keeping privileged information out of a case, it does not authorize a party to win dismissal because it wants both to keep the information secret and to use it in in its own defense. Like other privileges, state secrets authorizes only the exclusion of evidence, not the use of secret evidence to dismiss claims.

Defendants’ attempt to win dismissal erroneously conflates the evidentiary privilege recognized in Reynolds with the distinct state-secrets justiciability bar recognized in Totten. That bar supports dismissal, but only for government-contracting lawsuits where the “very subject matter” of the suit is secret. Defendants have acknowledged that “the very subject matter” of this case is not a secret.

Moreover, Totten’s bar derives from federal courts’ authority to fashion contractual remedies in cases where the parties assume the risk that there may be no judicial recourse to enforce a secret government contract. Plaintiffs never contracted with the Government, and never assumed the risk they would forfeit their First Amendment rights simply by practicing their faith. No doctrine of this Court permits the Government to extinguish Plaintiffs’ constitutional rights under these circumstances.

Accordingly, the district court had no authority to dismiss Plaintiffs’ religion claims at the pleading stage. Under the common-law rule, “the privileged information is excluded and the trial goes on without it,” General Dynamics, 563 U.S. at 485. Plaintiffs are entitled to the opportunity “to adduce the essential facts . . . without resort to material touching upon” state secrets. Reynolds, 345 U.S. at 11. The decision below should be affirmed on this ground alone.

Even if the state-secrets privilege would otherwise support dismissal here, Congress has displaced that remedy in cases involving electronic surveillance. FISA’s comprehensive provisions govern all aspects of domestic electronic surveillance of U.S. persons conducted for national security purposes. Section 1806 requires courts to conduct ex parte, in camera review to determine whether government officials complied with the law in two situations applicable here: (1) where the Government seeks to use information obtained or derived from electronic surveillance, see 1806(c); and (2) where U.S. persons sue the Government plausibly alleging that they were unlawfully surveilled, and request information related to that surveillance, see 1806(f). In both situations, if the Attorney General files a declaration attesting that disclosure of the information would threaten national security, Section 1806(f) requires the court to review the information ex parte and in camera to determine whether the underlying surveillance was lawful.

Section 1806(c) applies here because the Government says it has secret information it would like to “use” in its defense, and has sought dismissal of the religion claims on that basis. In support, it filed a declaration from the Attorney General stating disclosure of the information could threaten national security, and also a classified declaration. Under those circumstances, FISA requires a court to review the information ex parte and in camera to determine whether the underlying surveillance was lawful. It does not permit the Government to win dismissal without a judge determining whether it broke the law. Allowing such dismissals would permit the Government to escape civil liability even if it engages in precisely the conduct that Congress enacted FISA to prevent. FISA forecloses that result. Section 1806(f) independently triggers application of FISA’s review procedures because Plaintiffs are “aggrieved persons”—i.e., U.S. persons whom the Government surveilled—who have requested to “obtain” the information the Government illegally gathered about them.

Section 1806(f) requires that, where an American seeks to “obtain” such information, the court must employ the same ex parte, in camera procedure. Plaintiffs’ Prayer for Relief, which seeks destruction or return of the records Defendants illegally obtained, constitutes a “request” to “obtain” “information obtained or derived from electronic surveillance” under Section 1806(f).

Defendants propose a non-textual limitation on Section 1806, contending that courts can use its ex parte, in camera procedures only for “procedural motions,” such as motions to suppress, and not to adjudicate “the merits.” But the text contains no such distinction, and all textual signals refute it. Courts “shall” use Section 1806’s procedures “whenever” their conditions are met, “notwithstanding any other law,” in response to “any motion or request” under “any other statute or rule,” irrespective of whether the motion could be described as “procedural”—a word that never appears in the statute.

Defendants’ limitation also cannot be reconciled with Congress’s decision to create a damages remedy for individuals subject to unlawful electronic surveillance in Section 1810. Defendants concede they could invoke Section 1806(f)’s procedures to defend themselves with secret information in such a lawsuit, but inexplicably maintain that the same is not true for a plaintiff bringing such a suit. That is not what Congress wrote. Defendants’ argument would leave the government free to win dismissal of virtually any Section 1810 suit simply by asserting that the underlying conduct was secret—whether or not it was lawful—thus nullifying the civil damages remedy Congress created to ensure surveillance remains constrained by law.

3. Where FISA applies, it speaks more than clearly enough to displace the dismissal remedy of the statesecrets privilege. FISA speaks directly to the precise concerns addressed by the privilege. The fact that it does not explicitly use the words “state secrets” is hardly surprising; prior to 1978, this Court and others often referred to “national security” rather than “state secrets” to describe the Reynolds privilege. Accordingly, Section 1806(f) applies where the Attorney General attests that disclosure would harm “national security.” And it requires in camera review rather than dismissal, “notwithstanding any other law.”

Defendants argue applying the statute as the court of appeals directed would give rise to constitutional problems related to the executive’s constitutional authority to control national security information, but Congress clearly has authority to regulate surveillance affecting Americans, and to establish evidentiary rules governing civil litigation regarding that surveillance. United States v. U.S. District Court (Keith), 407 U.S. 297, 323–24 (1972).

Nor does FISA give rise to serious constitutional problems for the Agent Defendants. Judges routinely resolve many dispositive issues in national security cases using ex parte, in camera review. And the statute expressly accommodates any constitutional concerns by specifying that any remedies must be “in accordance with the requirements of law.” 1806(g). If a particular remedy would be unconstitutional, the statute itself bars it.

Finally, Defendants’ interpretation gives rise to serious constitutional problems. They read the statute to permit the Government to both assert that information is secret and use it to dismiss a suit alleging serious constitutional violations, without any judicial determination of whether the Government broke the law. Congress enacted FISA to constrain precisely such assertions of unchecked Executive power.

Read the full brief.

About the Author

Abdel-Rahman Hamed

Abdel-Rahman Hamed

Abdel-Rahman Hamed is a plaintiff-side public interest attorney litigating civil rights, constitutional rights, employment discrimination, and complex immigration cases. He is also the founder of Hamed Law, a values-based, purpose-driven, national law firm that is committed to empowering people and populations targeted by discrimination.

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