Appeals Court Doesn't Buy Government's National Security Assertions; Says Lawsuit Against FBI Can Continue

from the 'we-can't-explain,'-they-explained dept

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.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 4th amendment, 9th circuit, constitution, doj, fbi, fisa, muslims, national security, surveillance

Reader Comments

Subscribe: RSS

View by: Thread

  • icon
    Ninja (profile), 12 Mar 2019 @ 12:43pm

    I'm fairly sure there are places where invoking confidentiality due to national security concerns is valid but it seems to me this got to that "boy crying wolf" point where nobody buys it anymore because it's so overused for every little thing the govt doesn't want people to see.

    In any case it's a very rare thing to see, usually the courts tend to rubber stamp national security stuff. Good.

    reply to this | link to this | view in chronology ]

    • identicon
      Qwertygiy, 12 Mar 2019 @ 1:40pm


      Also hurting the "we must protect government secrets in court" argument is the fact that the government is leaking out of court, faster than my car's oil pan leaks out a quart.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 12 Mar 2019 @ 1:45pm

    "These are not the constitution violations you are looking for."

    That had to be an unpleasant surprise for them, the Nation Security mind-trick didn't work for once.

    Now, if more judges(like say, 'all'. 'All' would be nice) would follow suit and stop simply removing their spines every time someone with a badge enters the court, and/or the words 'national security' are mentioned that'd be great.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Mar 2019 @ 1:51pm

    Feds to lower court, "you're smelling what I'm selling."

    Appeals court to feds, "yeah, and it stinks like a baby diaper."

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Mar 2019 @ 2:53pm


      Supreme court to appeals court, "why do we always have to overturn the ninth circuit?"

      reply to this | link to this | view in chronology ]

      • icon
        James Burkhardt (profile), 12 Mar 2019 @ 3:16pm

        Re: Re:

        Statistically speaking, that is not true at all. From a question of cases the supreme court actually hears, the Ninth circuit has cases taken up and overturned by the SCOTUS only slightly more often than other circuits. But the majority of ninth circuit cases aren't ever heard by the SCOTUS, and because of it's size they hear more cases than anyone else, so as a percentage of total rulings the ninth circuit is one of, if not the, least overturned circuits.

        reply to this | link to this | view in chronology ]

      • icon
        Qwertygiy (profile), 12 Mar 2019 @ 3:27pm

        Actually, the 6th and 11th circuits have a higher rate of recent cases overturned by the Supreme Court than the 9th circuit, which is almost tied with the 3rd circuit.

        And it doesn't really say much anyway, as the 9th circuit is the largest circuit by far. It hears around 12,000 cases every year, while the other 11 circuits handle an average of 4,000 each.

        The cases that make it to the Supreme Court are generally proportionate to that; having 12,500 of 55,000 cases heard by a federal circuit in 2014 makes 22%, and having 16 of 69 federal circuit cases heard by the Supreme Court in 2014 makes 23%.

        Of those 69 cases, the Supreme Court overturned 50 -- 72%.
        Of those 16 9th Circuit cases, the Supreme Court overturned 10 -- 63%.

        That 63% made it the least overturned in 2014, except for the 1st Circuit (only one case heard, which was upheld) and the 4th Circuit (three upheld, three reversed).

        Yes, strictly speaking by the numbers, they had the highest quantity of reversals by the Supreme Court at 10, 20% of all reversals.

        But, they also had the highest quantity of upheld decisions at 6, 35% of all upheld decisions.

        This is because they simply have the most cases to hear.

        reply to this | link to this | view in chronology ]

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)


Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it

Email This

This feature is only available to registered users. Register or sign in to use it.