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On November 8, 2021, the Supreme Court heard arguments for a case that has serious ramifications for religious and civil liberties in the United States. FBI v. Fazaga will determine to what extent, under section 1806(f) of FISA, a US District court can review contested surveillance that is protected under state secrets privilege.
In an effort to sift out potential terror threats, the FBI began investigating Muslims in 2006 under Operation Flex. In one particular instance of this operation, the FBI paid an informant to attend the Islamic Center of Irvine and surrounding mosques in Southern California. The informant collected surveillance in the vast majority of his interactions with the Muslims in these communities. The FBI didn’t even have cause to single out any of these mosques, nor was the information tasked with following anyone suspected of criminal wrongdoing.
Unable to find any evidence of illegal activity after well over a year, the informant began to speak of “jihad and armed conflict”. Not wanting any part of what the informant was selling, uneasy community members soon reported him, ironically, to the FBI and filed a restraining order against the informant. After the informant went public, Fazaga and his fellow plaintiffs filed a suit claiming unlawful searches and religious discrimination.
State secrets privilege was invoked over surveillance gathered on Fazaga and his fellow plaintiffs. State secrets is an evidentiary rule that allows the withholding of evidence from legal proceedings, based on the government’s claim that revealing the evidence would be a risk to national security.
A large portion of Fazaga’s case against the FBI hinges upon the evidence deemed a state secret. Unable to weigh the evidence, the US District Court that first heard the case threw out most of Fazaga’s claims for that reason. On appeal, the 9th Circuit Court reversed the decision.
What’s at the heart of this case is the relationship between section 1806(f) of FISA and the state secrets privilege. 1806(f) says that if the Attorney General files an affidavit claiming certain evidence would threaten national security if disclosed, then the US district court can review the orders and applications for the electronic surveillance in camera (in a private session without the public) and ex parte (without an improper party being present) to see if the surveillance was legally conducted.
The FBI claims that 1806(f) of FISA has no clear language on whether it supersedes state secrets privilege.
Should the Supreme Court rule in favor of the FBI, evidence considered state secrets privilege could be immune to 1806(f) of FISA. This type of evidence would usually be dismissed, and lawsuits contingent upon such evidence would likely be thrown out entirely. US District judges would have their hands tied by this Supreme Court case.
State secrets privilege could provide far more cover for the US government to spy on its citizens in the event of a ruling favorable to the FBI.
United States v. Reynolds, the first Supreme Court case to officially recognize state secrets privilege, said that the state secrets doctrine should not be “lightly invoked.” However, its invocation has increased in recent decades. With no official system of checks, the courts have given federal agents an immunity hall pass.
Depending on the outcome, this case could open the flood gates to more government spying. It is no coincidence that a lawsuit posing a serious challenge to the state secrets doctrine has to do with religious discrimination.
In the wake of 9/11, Muslim Americans have been high on the list of religious groups of concern to the US government and it has resulted in many instances of discrimination. Glenn Greenwald has previously covered how the FBI has concocted similar schemes in the past. Since 9/11, roughly the FBI has paid 15,000 informants $3.3 billion to spy on Muslims. Yet this case should concern everyone, particularly any religious person.
Though it has been Muslim Americans at the forefront of this issue, there is no reason to think that Christian, Jewish, or Hindu Americans (or any other religious group) are exempt from government spying either. It’s not entirely outside the realm of possibility where the government would be interested in spying on these groups.
This fact is illuminated by recent examples during the pandemic. Many states barred or forcibly altered religious gatherings during the pandemic, and often granted much more lax restrictions on other non-religious social gatherings. In some cases, police have even shown up to shut down church gatherings. The outcome of this Supreme Court case could allow the government more cover to carry out such surveillance, leaving the victims of unlawful surveillance with little to no chance at restitution.
This is a clear violation of the separation of church and state, and an attack on the rights of Americans to practice their beliefs without being spied on. This is a great affront to one of our founding principles—religious freedom.
What’s more, is that this case can also chip away at our right to a fair trial if the government can entrap individuals and suppress the evidence in a court of law. FBI v. Fazaga could establish a legitimate check on the state secrets privilege and it almost seems like common sense. One could easily see it work out where a judge could review evidence under state secret privilege and maintain an oath to secrecy. This way national secrecy isn’t under threat AND an element of fairness and justice is maintained in lawsuits.
But, like most instances of state secrets privilege is invoked, we are at the mercy of the government to decide.
Trevor Mauk is a history graduate from the University of California, Berkeley. His research delves into American history, Constitutionalism, and religious freedom issues.
Jonathan Hofer is a Research and Marketing Associate at the Independent Institute. A Political Science graduate of the University of California, Berkeley, his research interests includes privacy law, student privacy, local-level surveillance, and the impact of emerging technologies on civil liberties.