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FBI v. Fazaga (Amicus Brief)

The Brennan Center filed an amicus brief urging the Supreme Court to preserve judicial review in civil cases alleging unlawful foreign intelligence surveillance.

Last Updated: October 5, 2021
Published: September 28, 2021

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.

FBI v. Fazaga (Amicus Brief) by The Bren­nan Center for Justice on Scribd