JURIST Deputy Features Editor Anne Bloomberg recently spoke with Elizabeth Goitein, director of the Brennan Center for Justice’s Liberty and National Security Program, about the case FBI v. Fazaga, for which the Supreme Court held oral arguments last week. The following has been edited and condensed for clarity. 

Anne Bloomberg (JURIST): Could you briefly explain what FBI v. Fazaga is about?

Elizabeth Goitein: The case involves a 14-month campaign of surveillance of mosques and Islamic centers in Southern California that the FBI conducted in 2006. In 2007, the FBI used an informant who later testified about the nature of this surveillance.

Elizabeth Goitein, Brennan Center for Justice.

And what he said is that he was tasked with spying on Muslim Americans simply because of their religion. It wasn’t to learn about a particular suspect or someone who was believed to be involved in criminal activity. And, in fact, when this particular informant started trying to encourage members of these mosques and Islamic centers, to engage in violence and terrorism, they were appalled. And, they actually reported him to the FBI. One of the mosques got a restraining order against him. 

So these were not criminals that he was spying on. These were ordinary citizens who were very much against this notion that he might be a terrorist. The campaign involved electronic surveillance, which is how some of the issues about the state secrets privilege came up. And essentially, there were bugs that were placed in the mosques, as well as in the homes and offices of people who attended the mosques. And this is the kind of surveillance that generally requires a warrant from the Foreign Intelligence Surveillance Court. But the informant was apparently told by the FBI that there wasn’t a warrant. So, some of the members of these Islamic centers, filed a lawsuit and alleged that the FBI’s actions constituted illegal surveillance, and also religious discrimination. And that’s what is underlying the lawsuit.

JURIST: I have read some of your other pieces on the case, and listened to your Tech Policy Podcast interview, and it seems like some of the issues at play are those of justiciability—whether the courts can hear cases involving state secrets—and of evidentiary rules. Could you elaborate on the key issues in the case?

Goitein: There are really two issues that came before the Supreme Court. The first is whether the Foreign Intelligence Surveillance Act [FISA] controls what happens in cases like this. And the second, is whether the state secrets privilege, assuming that state secrets privilege is what controls actually allows the dismissal of a lawsuit at the outset, rather than just exclusion of the privilege evidence.

I think the government argued that the case should be dismissed because of the state secrets privilege. That’s a legal doctrine under which the government can get certain evidence excluded from litigation if its disclosure would harm national security. But increasingly, the government has been arguing that the remedy in cases that involve state secrets is not an exclusion of the privileged evidence, but dismissal of the entire lawsuit at the pleadings stage—meaning before the relevant evidence has even been identified. The district court agreed with this approach and dismissed the lawsuit. 

The Ninth Circuit Court of Appeals reversed that decision, but for different reasons. The Ninth Circuit didn’t even address what the proper remedy is in a case that involves privileged evidence. Instead, the Ninth Circuit found that FISA, not the state secrets privilege, controls what happens in litigation when the government claims that disclosure of information about surveillance would harm national Security.

JURIST: So, under the Ninth Circuit, it would have gone back to the trial court and it would have been allowed to proceed?

Goitein: Right. Under FISA, the judge is required to look at the sensitive information ex parte and in camera, which means the non government party is not present. It is a private session in which the judge looks at the evidence. And then under this provision of FISA, the judge is supposed to make a determination as to whether the surveillance was lawful. And so the information doesn’t get disclosed to the public or to the non-government party. But the court can and must look at the information and issue a ruling on the lawfulness of the surveillance.

[Going back to the two key issues at play,] on either grounds, if the Court held that FISA controls this, then it goes back to the district court and the district court needs to look at the evidence and decide whether the surveillance was lawful. Alternatively, if the Supreme Court were to decide that the state secrets privilege only permits the exclusion of privileged evidence and doesn’t actually operate as a justiciability bar, then once again, that case would go back to the District Court. And then, at that point, the court would be in a position where it basically had to fashion a remedy for a situation where it determined that the government had a meritorious defense but needed privileged information to prove it. 

The Supreme Court didn’t seem inclined to rule on the state secrets issue, because the Ninth Circuit hadn’t gotten into it. The Ninth Circuit had just said, Look, the state secrets privilege is displaced by FISA. So we’re not going to look into the question of how the state secrets privilege should apply in a case like this. The Supreme Court seemed to think that if it was going to address that issue, then the Ninth Circuit would have to take the first crack at it.

JURIST: This is clearly a very complicated case. What is ultimately at stake here? Why should I be concerned about whether FISA or state secrets privilege applies?

Goitein: As Justice Sonia Sotomayor recognized in oral arguments, if you allow the state secrets privilege to displace the mechanism established in FISA, and if you say that the state secrets privilege itself allows dismissal on the pleadings, it would become essentially impossible for anyone to bring a lawsuit challenging unlawful surveillance. And frankly, it goes beyond that, because it would be impossible to bring a lawsuit challenging any national security policy involving sensitive information. That would create an accountability free zone for the government to act in this country in ways that violate people’s constitutional rights.

JURIST: That sounds pretty serious.

Goitein: It really is. The stakes are extremely high. Because what is perceived and treated as national security is an ever expanding area of what the government has been doing since 9/11.  And, so what this does is take any large and increasing swath of government activity and place it beyond the reach of judicial review and accountability.

JURIST: Yeah. Wait, what was the legal basis for the surveillance of the Fazaga plaintiffs? The government didn’t have a warrant, they didn’t go to the FISA court, and they didn’t have a criminal case…

Goitein: I think you just answered your own question about the stakes of this case. If the plaintiffs’ allegations are correct, and for purposes of a motion to dismiss, the court has to assume that they are correct. There was no legal basis for the surveillance, it was unlawful, and in addition to being unlawful because it was unauthorized. It violated the First Amendment, because it was based on religious animus. 

JURIST: You brought up Sotomayor’s comments; how do you think oral arguments went? Was there anything that surprised you? Do you have any sense of how it’s going to play out?

Goitein: As I mentioned, there were two issues before the court. The first is whether FISA controls what happens in cases like this. And the second is whether the state secrets privilege allows dismissal of a lawsuit at the outset. You only have to answer one of these questions. 

If FISA is what controls here, then the district court was wrong to rely on the state secrets privilege, and there’s no need to ask whether the district court misunderstood how that privilege works. But by the same token, if the district court was wrong about how the state secrets privilege works, then the District Court was wrong to dismiss the case. And, there’s no need to ask how the state secrets privilege relates to FISA. And so, it was interesting to me to hear the justices talking about which of these questions logically comes first. 

The Ninth Circuit seems to think, well, there’s no need to address these thorny issues of the state secrets privilege, because the procedures in FISA basically govern what you do in a case involving state secrets. And the Supreme Court seemed to look at it the other way, with Justices suggesting that maybe the Ninth Circuit shouldn’t have addressed the FISA question, because that question is complicated and thorny. And you don’t need to address it if the state secrets privilege was wrongly used here. It’s not clear to me that either of those questions logically comes first or second, they’re both really difficult questions. But the court seems inclined to punt on the FISA question and remand to the Ninth Circuit to consider whether the state secrets privilege allows for dismissal at the outset of the case. 

I’m a little disappointed by that, because it leaves unresolved this very important question of how FISA interacts with the state secrets privilege. But it also is an opportunity for the Ninth Circuit to go back and revisit some of its case law on the state secrets privilege, which frankly, has not been so great. And during the oral arguments, there was discussion of the fact that the Ninth Circuit’s approach to the state secrets privilege, which really would permit dismissal, rather than simply exclusive privileged evidence might need to be revisited. In light of intervening Supreme Court cases, there’s a case called General Dynamics in which the Court made a clear distinction between a certain category of cases involving government contracts that are themselves state secrets, where the entire litigation is essentially impossible, because the entire subject matter of the contract of the case is itself a secret contract versus cases in which the issue is evidence that’s protected by the state secrets privilege, rather than the entire subject matter of the case. And nobody is saying that the subject matter of this case is itself a state secret. So this is an opportunity essentially, for the Ninth Circuit to correct a mistaken view of the state secrets privilege, and to apply intervening Supreme Court precedent. Certainly, it’s my hope that that is what the Ninth Circuit will do if the case is remanded on that basis. 

One thing that was sort of a nice surprise to me, was that Justice Gorsuch seemed to really appreciate some of the difficulties with the government’s interpretation of the state secrets privilege. The government basically favors a heads we win, tails you lose approach where the case gets dismissed at the outset, based on a prediction that either the plaintiff or the defendant will need the privileged evidence. So if the plaintiff has a meritorious claim, but we need privileged evidence to prove it, then too bad for the plaintiff. If the government has a meritorious defense, and would need the privileged evidence to raise a defense, too bad for the plaintiff. So in either case, the brunt of the privilege falls on the plaintiff. 

And, as the plaintiffs’ lawyer discussed in the oral argument, that is not how evidentiary privileges usually work. It’s not how any other evidentiary privilege works. If there is evidence that’s protected by the attorney client privilege or the marital spouse privilege, it drops out of the case, and then the chips fall where they may. If that evidence would have helped the plaintiff, then the plaintiff suffers. If that evidence would have helped the defendant, then the defendant suffers. But you don’t pick and choose which party you’re going to favor in every case. And Justice Gorsuch seemed to appreciate that and seemed to appreciate that that was both fundamentally unfair and also not how other privileges work. And he also seemed to appreciate that the plain text of FISA favors the plaintiffs’ interpretation. 

JURIST: OK, it seems like there is some traction in the argument, at least with Gorsuch, but it’s probably going to get remanded, you think, back down to the Ninth Circuit to decide? What is next for Fazaga, for the plaintiffs?

Goitein: It depends. Now, first of all, I could be wrong. It’s notoriously difficult to predict how the court is going to rule based on the oral arguments. So this is just my reading of the tea leaves that the justices are probably going to remand to the Ninth Circuit to look at the state secrets issue. Having said that, there’s a couple of different ways that could happen. One is that the Justices, a majority of Justices, could say to the Ninth Circuit– we don’t need to reach the question of how or whether FISA applies here. Because we think this can and should be resolved on the other issue, the state secrets issue. So we’re remanding to the Ninth Circuit to consider that issue. 

Or the majority of Justices could say FISA does not apply here. But that doesn’t answer the question, because the Ninth Circuit still needs to look at this state secrets issue, and if FISA doesn’t control, it might still have been inappropriate for the district court to dismiss based on the state secrets privilege. 

So, there are two ways that it could get back to the Ninth Circuit, and it’s potentially quite significant to the plaintiffs which of these approaches the court takes. But, either way, it seems pretty clear to me that the plaintiffs’ case is still alive. I don’t see any way, based on the way the oral argument went, I don’t see the Supreme Court holding both that FISA does not apply, and that the district court applied the state secrets privilege correctly. And that’s what the court would have to hold in order to kill the plaintiffs’ lawsuit. I don’t think there’s much of a chance that the Supreme Court would rule in that way. 

JURIST: Are there legal avenues, other than civil litigation, that can provide accountability in the courts for unlawful surveillance? 

Goitein: There are two other paths toward accountability in the courts. The first is, the initial surveillance is supposed to be approved by the FISA court. So that’s supposed to be a bulwark. Now, in this case, the entire allegation is that the government did not go to the FISA court when it should have. So obviously in a case like that the FISA court does not serve as an avenue to accountability when the government simply ignores it. 

But even when the government goes to the FISA court in the first instance, to get permission for the surveillance, this is not a particularly robust accountability mechanism. The proceedings before the FISA court court are pretty much always non-adversarial. It’s the government who appears before the court only. That is also true in criminal cases where police officers seek warrants. That is often done ex parte. But it’s very different because in the ordinary criminal context, the goal of the investigation is to bring a prosecution and successful investigations culminate in prosecutions. And at that point, the defendant has a right to know how the government obtained the information that it has, and can challenge the lawfulness of surveillance. Whereas in foreign intelligence surveillance cases, the investigations almost never lead to criminal prosecution. It’s not even the point of the investigation. So there really isn’t this likelihood of adversarial testing at the end of the line, and in the absence of that, of the possibility of adversarial testing. The government is much more likely to overreach. 

The other thing which we have seen over and over and over again, is that there has been a pattern of the government providing enough misleading information to the FISA court to the point that the FISA Court itself has described the government as exhibiting an “institutional lack of candor.” And that’s a quote. You know, we’ve known for a long time, that that’s true of the broad surveillance programs that the government undertakes under, for example, section 702 of FISA, or saying the NSA’s bulk collection of Americans’ telephone records. But we learned in the last couple of years that it’s also true in cases where the government gets an individual court order to conduct surveillance against a single target. And we saw with the Justice Department’s inspector general report on FISA applications, that there is rampant negligence in the filing of these applications. The inspector general looked at 29 applications to the FISA court to conduct surveillance and found 209 errors in them, I mean, that’s pretty appalling. So for these reasons, the FISA court is not necessarily a particularly effective way of achieving oversight of government surveillance. 

And then the other avenue is criminal cases, where criminal cases are brought and the government is supposed to notify the defendants of any surveillance that’s taken place under FISA. And at that point, the defendant would be able to challenge that surveillance. But in fact, what we’ve seen is that the government has found all kinds of ways to evade this notice requirement, including by essentially reconstructing the evidence that it obtained using FISA using other less controversial means so that it can avoid disclosing the fact that it relied on FISA. And finally, even when there’s notice to the defendant, the defendant still can’t see the materials, the application or the basis for the application. And that makes it very hard to challenge the lawfulness of the surveillance.So all this is to say that civil litigation, in some ways, provides the most effective means for challenging unlawful government foreign intelligence surveillance. And if you take that off the table through an expansive and misguided interpretation of the state secrets privilege, you’re left with some really thin reeds on which to rest accountability.

JURIST: Is there anything else we should be keeping an eye on that’s coming up regarding surveillance or state secrets? Are there any other cases in the pipeline?

Goitein: We should expect to see a ruling any day now in a Tenth Circuit case called US v. Muhtorov, which involves the question of the government’s ability to use section 702 surveillance, which is supposed to be targeted only at foreigners overseas, against American citizens and residents. And whether it’s constitutional for the government to pick up Americans’ communications in the course of targeting foreigners overseas, and then search for and use surveillance that was acquired without a warrant based on the premise that it was targeted for foreigners overseas—in a manner that actually targets Americans.