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Analysis

A Crucial Supreme Court Case on Accountability for Discriminatory Surveillance

The FBI is trying to hide behind national security to deflect claims of anti-Muslim profiling.

Supreme Court in the daytime
Matt Anderson/Getty

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.