A lawsuit against the FBI for pervasive, unconstitutional surveillance of Muslims can continue after receiving a very key determination from the Ninth Circuit Court of Appeals. At the center of the case are three Muslims who claim the FBI’s continuous surveillance — assisted by an FBI informant — violated a number of Constitutional protections.
The key victory here is the court’s overturning of the lower court’s ruling on the national security assertions raised by the government in hopes of avoiding having to litigate the alleged violations at all. The lower court granted the government’s motion to dismiss, saying the government’s secrecy matters far more than an unviolated Constitution. The appeals court reverses that, noting stating that the government can’t dodge litigation simply by claiming the subject of the lawsuit is too sensitive to discuss in court. From the decision [PDF]:
Plaintiffs asserted eleven claims, which fell into two categories: claims alleging unconstitutional searches, and claims alleging unlawful religious discrimination. The district court dismissed all but one of plaintiffs’ claims on the basis of the state secrets privilege, and allowed only the Foreign Intelligence Surveillance Act (“FISA”) claim against the FBI Agent Defendants to proceed.
The panel held that some of the claims the district court dismissed on state secret grounds should not have been dismissed outright. The panel further held that the district court should have reviewed any state secrets evidence necessary for a determination of whether the alleged surveillance was unlawful following the secrecy-protective procedure set forth in FISA.
The lower court showed too much deference to the state secrets assertions. It must now reexamine the claims made by the government, as well as their application to the alleged harms. This is very helpful precedent — one that forces lower courts to pay a lot more attention to the government’s natsec hand-waving, rather than simply conclude the government knows best when it comes to state secrets.
There’s more good stuff in the panel’s opinion. Two FBI agents will have to defend themselves against claims of unlawful surveillance, like the following:
Plaintiffs offer sufficient well-pleaded facts to substantiate their allegation that some of the Agent Defendants—Allen and Armstrong—were responsible for planting devices in AbdelRahim’s house. Specifically, the complaint details one occasion on which Allen and Armstrong asked [FBI informant] Monteilh about something that had happened in AbdelRahim’s house that Monteilh had not yet communicated to them, and explained that they knew about it because they had audio surveillance in the house.
Plaintiffs also allege sufficient facts with regard to those two Agent Defendants in support of their allegation of electronic surveillance of Fazaga’s office in the OCIF mosque in Mission Viejo: Allen and Armstrong told Monteilh that electronic surveillance was “spread indiscriminately” across “at least eight area mosques including ICOI, and mosques in Tustin, Mission Viejo, Culver City, Lomita, West Covina, and Upland,” and that “they could get in a lot of trouble if people found out what surveillance they had in the mosques.”
The defenses raised by the sued agents forms part of the Ninth Circuit’s state secrets decision. It was the agents that raised this defense, not the agency they worked for (which was also sued). As the court notes, the agents cannot possibly hope to prevail by raising a defense the government determined didn’t apply to the situation.
The Agent Defendants—officials sued in their individual capacities—are not the protectors of the state secrets evidence; the Government is. Accordingly, and because the Agent Defendants have not identified a reason they specifically require dismissal to protect against the harmful disclosure of state secrets where the Government does not, we decline to accept their argument that the Government’s dismissal defense must be expanded beyond the religion claims.
What the government did do is invoke FISA’s protections against open discussion of counter-terrorist surveillance programs. The court reminds the government that the law was created in response to abusive surveillance programs deployed by the government — abuses much like those central to this case. While it did eventually lend its name to more surveillance abuses following the 9/11 attacks, it was actually more of a reform effort in its original state. Since the government appears to have forgotten FISA’s original aim, the appeals court delivers this reminder.
The inference drawn from the text of § 1806 is bolstered by § 1810, which specifically creates a private right of action for an individual subjected to electronic surveillance in violation of FISA. FISA prohibits, for example, electronic surveillance of a U.S. person “solely upon the basis of activities protected by the first amendment to the Constitution of the United States.” 50 U.S.C. § 1805(a)(2)(A). Here, Plaintiffs allege they were surveilled solely on account of their religion. If true, such surveillance was necessarily unauthorized by FISA, and § 1810 subjects any persons who intentionally engaged in such surveillance to civil liability. It would make no sense for Congress to pass a comprehensive law concerning foreign intelligence surveillance, expressly enable aggrieved persons to sue for damages when that surveillance is unauthorized, see id. § 1810, and provide procedures deemed adequate for the review of national security-related evidence, see id. § 1806(f), but not intend for those very procedures to be used when an aggrieved person sues for damages under FISA’s civil enforcement mechanism. Permitting a § 1810 claim to be dismissed on the basis of the state secrets privilege because the § 1806(f) procedures are unavailable would dramatically undercut the utility of § 1810 in deterring FISA violations. Such a dismissal also would undermine the overarching goal of FISA more broadly—“curb[ing] the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it.”
To sum up, the appeals court isn’t willing to let the government (or its agents) claim this apparently-illegal surveillance is too sensitive to discuss in open court. The government will still get to submit evidence and arguments to the court in ex parte hearings if it wants to argue certain elements of the case cannot be discussed publicly, but it will not be granted a blanket exception it can use to dodge the litigation in its entirety. The court ends its decision by noting the government can’t have this much power if it’s not willing to accept the responsibility that comes with it.
In holding, for the reasons stated, that the Government’s assertion of the state secrets privilege does not warrant dismissal of this litigation in its entirety, we, too, have recognized the need for balance, but also have heeded the conclusion at the heart of Congress’s enactment of FISA: the fundamental principles of liberty include devising means of forwarding accountability while assuring national security.
Which is exactly how it should be. Unfortunately, too many courts take the district court’s path and give the government all the secrecy it asks for.
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