The Federal Bureau of Investigation (FBI) launched Operation Flex in 2006 in order to collect information — purportedly for counterintelligence purposes — from the Muslim communities of southern California. Over the course of fourteen months, an FBI informant feigned conversion to Islam, wore a wire to regular religious services, and obtained audio and video recording from congregants’ homes and businesses. At the same time, his Bureau handlers installed electronic devices in at least eight mosques across Orange County, sweeping up reams of identifying information and hundreds of hours of private conversations.
Yassir Fazaga, a target of that investigation, filed a lawsuit against the FBI and its agents alleging religious discrimination under the First Amendment, the Fifth Amendment, the Religious Freedom Restoration Act of 1993, and the Privacy Act of 1974; in parallel, he alleged unlawful surveillance under the Fourth Amendment and the Foreign Intelligence Surveillance Act (FISA) of 1978. The Government moved to dismiss the discrimination claims by invoking the “state secrets privilege.” This principle, rooted in U.S. v. Reynolds, 345 U.S. 1 (1953), empowers the Government to compel exclusion of evidence if its disclosure through litigation would harm national security. Here, the FBI claimed that merely allowing the case to proceed would pose such danger, as it would necessarily require the use of privileged evidence. The district court agreed and dismissed almost all of Fazaga’s claims in 2012. On appeal, the Ninth Circuit reversed in part. It held that FISA displaces the state secrets privilege in governing judicial review of electronic surveillance. One of the statute’s sections, 50 U.S.C. 1806(f), provides a mechanism for ex parte and in camera review of classified review in lieu of exclusion or dismissal; the majority decided that the district court erred in declining to follow those procedures to reach the merits of Fazaga’s claims. The FBI petitioned the Supreme Court for certiorari in December 2020, which it granted in June 2021.
The Brennan Center and its co-counsel Davis Wright Tremaine, joined by the Due Process Institute, the Electronic Privacy Information Center, FreedomWorks, and TechFreedom, filed an amicus brief supporting Fazaga. Our brief observes that allowing the state secrets privilege to trump section 1806(f) would render civil litigation challenging FISA abuses all but impossible. It demonstrates that the remaining ways of obtaining judicial review of FISA surveillance — through review by the Foreign Intelligence Surveillance Court, and by challenges to evidence introduced in criminal proceedings — have proven inadequate to protect civil liberties against governmental abuses of FISA. It concludes the ongoing viability of the civil litigation option — and, thus, the displacement of the state secrets privilege by section 1806(f) — is critical to ensure accountability and the rule of law. Read the Brennan Center’s brief here.
In March 2022, the Supreme Court reversed the Ninth Circuit’s judgment, holding that section 1806(f) does not displace the state secrets privilege.