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Justices Seem Inclined to Send Surveillance Case Back to Lower Court

November 9, 2021 by Dan McCue
The Supreme Court building as seen from the grounds of the U.S. Capitol. (Photo by Dan McCue)

WASHINGTON — A majority of Supreme Court justices appeared ready on Monday to send a controversial government surveillance case back to a lower court for further proceedings, despite the White House’s contention such a move could harm national security.

The case, Federal Bureau of Investigation v. Fazaga, was the second case this term in which the justices considered the state secrets privilege which allows the government to withhold information in litigation when disclosing it would compromise national security. 

 Last month the court heard a case involving a Guantanamo Bay detainee, United States v. Zubaydah, that seeks a determination of how the privilege applies to a petitioner’s request for information about CIA torture at so-called offshore “black sites.”

On Monday the justices were being asked to decide whether an appeals court erred in dismissing the case, or whether a provision of the Foreign Intelligence Surveillance Act will allow it to continue.

The question stems from a lawsuit filed by three men from Southern California, who claim in a class action that the FBI spied on them and scores of others solely due to their religion in a surveillance operation after the Sept. 11, 2001, attacks.

As outlined in the court documents, Craig Monteilh was a confidential informant for the FBI in 2006 and 2007, and during that time he pretended to be a new convert to Islam as a way to become part of Southern California’s Muslim community.

Monteilh told people he was a fitness consultant but he was really working as part of a surveillance program known as Operation Flex. 

Monteilh regularly attended the Islamic Center of Irvine in Orange County and has said that he was told to collect as much information on as many people as possible. 

He gathered names and phone numbers and secretly recorded thousands of hours of conversations and hundreds of hours of video using a camera concealed in a shirt button.

Three of the men Monteilh allegedly recorded sued, seeking damages and asking the government to destroy or return the information it had gathered.

A lower court dismissed the case after the government warned that allowing the case to go forward could reveal sensitive details of the investigation and the decision-making behind it.

But the 9th U.S. CIrcuit Court of Appeals reversed that decision in 2019, saying the lower court first should have privately examined the evidence the government said was state secrets.

Both the Biden administration and the Trump administration before it have filed briefs arguing the appeals court was wrong.

“The state secrets privilege is firmly grounded in the Constitution and the common law and is critical to safeguarding national security,” said Deputy Solicitor General Edwin Kneedler Monday morning, as he explained the government’s position.

“The Ninth Circuit did not disagree with the district court’s conclusion that the information concerning the foreign intelligence investigation at issue here was — falls within that privilege,” he continued. “The Ninth Circuit instead held that Section 1806(f) of FISA displaces the state secrets privilege and requires the district court to adjudicate the merits of plaintiffs’ challenge using the very information that is covered by the privilege.

“That novel interpretation cannot be squared with the text, context, or purpose of Section 1806(f),” Kneedler concluded.

Section 1806 of the Foreign Intelligence Surveillance Act governs the use of information obtained or derived from electronic surveillance for foreign-intelligence purposes under FISA.

Among other things, it requires the federal or a state government to provide notice to an aggrieved person whenever it intends to introduce such information as evidence in any proceedings against that person; affords the aggrieved person the opportunity to move to suppress any such information that was not obtained in compliance with FISA; and establishes special in camera and ex parte procedures to determine the admissibility of such evidence.

On Monday, a majority of justices, on both sides of the court’s philosophical spectrum, appeared to both agree with the government and favor sending the case back to a lower court for additional proceedings — basically a split decision for each side.

Justice Brett Kavanaugh, for instance, suggested sending the case back to 9th Circuit would allow the issues raised by the case to be “fleshed out” and returned to the Supreme Court when there’s a single “central focus of the case.”

“I feel like we’d be doing a drive-by in this case on a massively important issue if the court were to dive directly into the issue of divulging secret information,” Kavanaugh said.

For her part, Justice Elena Kagan tried to weigh the either/or questions raised by the case against each other.

“Suppose that the easiest question in this case, is the question of when dismissal is appropriate, and the 9th Circuit decision was in some important way premised on an incorrect understanding of when dismissal is appropriate in a state secrets case,” she said. “And suppose too that I find 1806 questions quite difficult.

“If the entire discussion of the 9th Circuit was premised on this error about state secrets dismissals, one wouldn’t have to get into [the question of privilege], that would seem an attractive solution to me,” she added.

But Kagan immediately said the attractiveness of that solution at the moment would only go so far, as such a decision would leave the 9th Circuit’s “incorrect” view of Section 1806 “on the books.”

At least three other justices, Stephen Breyer, Sonia Sotomayor and Neil Gorsuch raised the idea of sending the case back to the 9th Circuit at various points during oral arguments.

A decision in the case is expected by early summer.

Dan can be reached at [email protected] and at https://twitter.com/DanMcCue.

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