Case Summary and Outcome

The United States Supreme Court unanimously reversed the ruling of the Ninth Circuit that section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 (FISA) displaces the state secrets privilege in cases involving electronic surveillance. The respondents, Yazzie Fazaga, Ali Malik, and Yasser Abdel Raheem, three Muslim residents, filed a class action suit against the Federal Bureau of Investigation (FBI), alleging that they were subject to illegal surveillance by FBI along with other Muslims under FISA. The state secrets privilege is “[g]overnment privilege against court-ordered disclosure of state and military secrets”, while FISA provides special procedures for use when the Government wishes to conduct foreign intelligence surveillance. In this case, the Court noted that the lack of any reference to the state secrets privilege in FISA represents strong evidence that the state secrets privilege should not be regarded to have been revoked or restricted unless Congress has used clear statutory language to that effect. The Court also noted that “nothing about the operation of § 1806(f) is incompatible with the state secrets privilege” since they are invoked in different cases.

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Facts

This case arose from a covert surveillance operation conducted by an informant recruited by the FBI at one of the mosques in Orange County, California, to gather information based solely on their Muslim religious identity. The informant collected personal information (i.e. names, phone numbers, emails, religious beliefs, political views, etc.) of hundreds of those who visited the mosque. He also secretly recorded conversations in the mosque and video-recorded sensitive locations.

The respondents, Yassir Fazaga, Ali Uddin Malik, and Yasser Abdelrahim, are three Muslim residents of Southern California. They claimed that the US Government used the Foreign Intelligence Surveillance Act of 1978 (FISA) to subject them and other Muslims to illegal surveillance. FISA provides special procedures for use when the Government wishes to conduct foreign intelligence surveillance as well as “a procedure under which a trial-level court or other authority may consider the legality of electronic surveillance conducted under FISA and order specified forms of relief”.

The Government requested the dismissal of these claims, arguing that the disclosure of the information sought would be detrimental to national security interests. The District Court dismissed the claims submitted by the plaintiffs under the state secrets privilege doctrine because litigating such claims “would require or unjustifiably risk disclosure of secret and classified information.” The plaintiffs appealed the decision before the Ninth Circuit, which disagreed and remanded the case to the District Court, ruling that “[c]ongress intended FISA to displace the state secrets privilege”. After that, the FBI appealed the ruling before the Supreme Court, which agreed to hear the case.

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Decision Overview

Justice Alito delivered the unanimous opinion of the United States Supreme Court.

The main issue for consideration before the court was whether the Foreign Intelligence Surveillance Act of 1978 (FISA) displaced the state secrets privilege.

The arguments, in this case, revolved around the correct interpretation of subsection 1806(f) of FISA. On the one hand, the respondents argued that subsection 1806(f) can also be triggered when an aggrieved person tries to obtain secret surveillance information and when there is a push from the Government to dismiss a case under the state secrets privilege. [p. 2] Respondents also noted that subsection 1806(f) applies when the government notifies that it intends to either add to evidence information they obtained through secret surveillance or use such information. Accordingly, subsection 1806(f) applies to their case given that the Government did use “information gathered under FISA when it invoked the state secrets privilege” as a ground for dismissal before the District Court. [p. 7] They further stated that subsection 1806(f) applies in the case an “aggrieved person” submits “any motion or request” to “discover or obtain” evidence stemming from electronic surveillance. This in their view was met since they sought an injunction ordering the Government to “destroy or return any information gathered through the unlawful surveillance program”. [p. 8]

However, on the other hand, the Government countered that subsection 1806(f) applies only “when a litigant challenges the admissibility of the government’s surveillance evidence.” [p. 7] The Government also contested the submissions made by the respondents, emphasising that invoking the state secrets privilege did not amount to a use of “information obtained or derived from an electronic surveillance.”, but instead demonstrated “an attempt to prevent the use of that information.” [p. 8] The Government also stressed that the complaint’s prayer for relief submitted by the respondents did not amount to a “motion or request … to discover [or] obtain” either information emanating from or materials related to FISA surveillance. [p. 8]

The two legal rules involved in this case are first the long-established doctrine of state secrets privilege which is the “[g]overnment privilege against court-ordered disclosure of state and military secrets”. [Totten v. United States, 92 U. S. 105, 107 (1876)]. The second is the 1978 Foreign Intelligence Surveillance Act, which provides special procedures for use when the Government wishes to conduct foreign intelligence surveillance. [See Clapper v. Amnesty Int’l USA, 568 U. S. 398, 402] Section 1806 of the act is of particular importance given that it allows the use of lawfully gathered information in judicial … proceedings but “specifies procedures that must be followed before that is done”. [p. 2]

Subsection 1806(c) mandates the government to notify the aggrieved person and the court before entering the obtained information into evidence. Further, subsection 1806(e) allows the aggrieved person to claim that such information was either unlawfully acquired or not in conformity with the authorisation order and thus should not be included in the evidence. While subsection 1806(f), the provision at issue, provides for the assessment of the “lawfulness and admissibility” of the information obtained under FISA. Such a determination can be made in private chambers and in absence (in camera and ex-parte) where the court will determine the lawfulness of such surveillance and if it decides that the evidence was unlawfully obtained, it must decide to squash such evidence or “grant the motion of the aggrieved person,” according to subsection 1806(g). [pp. 3-4]

In analysing the issues raised, the Court offered two reasons for why subsection 1806(f) of FISA does not displace the state secrets privilege.

The Court first noted that since there is no reference in FISA to the state secrets privilege either by name or using an identifiable synonym, this demonstrates strong evidence that such a privilege was not negated or limited by subsection 1806(f) of FISA. This is “[r]egardless of whether the state secrets privilege is rooted only in the common law (as respondents argue) or also in the Constitution (as the Government argues).” [p. 9]

Second, the Court highlighted that the Ninth Circuit erred in ruling that subsection 1806(f) and the state secrets privilege are “animated by the same concerns”, emphasising that there is no conflict between the two, even under the interpretation argued by the respondents. In support of this conclusion, the Court noted that the “state secrets privilege will not be invoked in the great majority of cases in which §1806(f) is triggered.” Simply because the Government will clearly not invoke such a privilege in order not to block the disclosure of evidence it wishes to use before a court. [p. 10]

The Court further stated that even in cases where the aggrieved person raises subsection 1806(f) to contest the legality of the evidence collected under FISA, no conflict would arise between subsection 1806(f) and the state secrets privilege because both “(1) require courts to conduct different inquiries, (2) authorize courts to award different forms of relief, and (3) direct the parties and the courts to follow different procedures.” [p. 10]

The Court first elaborated that in relation to subsection 1806(f), courts are required to examine the lawfulness of surveillance. Whereas when the state secrets privilege is in question, courts are not asked to look into the legality of the obtained evidence but whether the disclosure of evidence would cause harm to national security. [pp. 10-11] This means that even if the evidence was unlawfully obtained, this would still not revoke the state secrets privilege. [p. 11]

Regarding the available reliefs, courts in cases involving subsection 1806(f) are not authorised to grant any form of relief to the aggrieved person if the evidence was found to have been lawfully obtained. While courts in cases in which the state secrets privilege is triggered “may order the disclosure of lawfully obtained evidence if it finds that disclosure would not affect national security”. [p. 11]

As for the procedures provided to both parties and courts, subsection 1806(f) allows the Attorney General to obtain, in private chambers and in absence, an assessment of the surveillance evidence after submitting “an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States.” On the contrary, the power to raise the state secrets privilege is not exclusive to the Attorney General but extends to “the head of the department which has control over the matter…”. [p. 12]

In addition, the procedures available in the case of invoking the state secrets privilege can be more protective in some cases than those provided under subsection 1806(f). Unlike subsection 1806 (f) which does not allow the Government to withhold highly classified information from judicial review if it is pivotal to determining the legality of surveillance, invoking the state secrets privilege can block a judge’s review of relevant information, even in private and in absence, if the government can demonstrate that the disclosure of such information would pose a reasonable danger to national security. [p. 13]

Last but not least, the Court noted that there is no need to look into the interpretation of subsection 1806(f) because even the interpretation provided by the respondents would not entail that subsection 1806(f) displace the state secrets privilege.

Finally, the Court concluded that “Congress did not eliminate, curtail, or modify the state secrets privilege when it enacted §1806(f)” of FISA. [p. 13]

Accordingly, the Court reversed the decision ruled by the Ninth Court.

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