On November 8, the Supreme Court will hear a case about whether the government can use blanket claims of secrecy to get itself off the hook when sued for illegal surveillance.
In 2006 and 2007, the FBI had an informant spy on a Southern California Muslim community, and the operation involved electronic surveillance under the Foreign Intelligence Surveillance Act (FISA).
Three of the people spied on, including Yassir Fazaga, filed a lawsuit alleging that the FBI conducted unlawful searches and investigated congregants of a mosque based solely on their religious identity.
The government argued that the case should be dismissed because of the state secrets privilege, which allows the government to prevent evidence from being used in litigation if its disclosure would harm national security. Especially since 9/11, the government has used this tactic to derail lawsuits on government overreach not just on surveillance, but also torture and retaliation against whistleblowers.
In response, Fazaga cited a section of FISA that requires a judge to privately view evidence flagged by the government as sensitive in order to determine whether the surveillance was unlawful. The district court rejected this approach but was reversed by the Ninth Circuit Court of Appeals, and now the Supreme Court is considering the issue.
The Brennan Center filed a friend-of-the-court brief in support of Fazaga alongside the Due Process Institute, the Electronic Privacy Information Center, FreedomWorks, and TechFreedom. We argue that allowing the state secrets privilege to block judicial review would make civil litigation challenging abuses of power under FISA virtually impossible. That would clearly violate Congress’s intent in passing FISA, and it is even more problematic considering that the government has already found ways to evade other pathways to accountability in cases like these.
One such pathway is through the Foreign Intelligence Surveillance Court (FISC), which Congress created in 1978 when it passed FISA. The surveillance law established the rules for domestic collection of foreign intelligence information. A crucial feature of the law is that the FISC must grant the government permission before it engages in foreign intelligence surveillance that targets Americans or people on U.S. soil.
But, as the Brennan Center’s brief points out, “the FISC reviews FISA applications through a non-adversarial process in which the government almost always appears ex parte and exhibits ‘a chronic tendency’ to provide misleading information.” Time and again, the government has provided inaccurate information to the FISC, and there is no opposing party to point out the errors. This problem was on stark display last year when the Department of Justice’s inspector general reviewed 29 FISA surveillance applications that the government had submitted to the FISC and discovered more than 200 errors in them.
FISA’s protections for criminal defendants also fail to provide an adequate way to challenge unlawful surveillance. Although the law requires the government to notify defendants if the government has spied on them under FISA, the government has often shirked this obligation. Moreover, only a tiny proportion of FISA targets are ever prosecuted. The congregants in Southern California were never charged with a crime and therefore had no recourse to challenge the surveillance through the criminal court system.
Given these shortcomings, the consequences of allowing the state secrets privilege to prevail are dire. For too long, the government has been hiding behind it to avoid accountability in the courts, this time seeking to shut down claims that the FBI engaged in religious discrimination. If the Supreme Court goes along, the result would be to seal off the most effective avenue to accountability for unlawful FISA surveillance.