Bench Memos

Law & the Courts

Sharp En Banc Ninth Circuit Divide on State-Secrets Privilege/FISA

In addition to the Abu Zubaydah case, the en banc Ninth Circuit divided sharply on a second order today involving the state-secrets privilege—this time in conjunction with the Foreign Intelligence Surveillance Act. The court denied en banc review of the panel decision against the government in Fazaga v. FBI. (The amended panel decision is attached to the order.) Ten judges dissented.

The case involves claims by three Muslim residents of California that the FBI paid a confidential informant to conduct a covert surveillance program that targeted Muslims based solely on their religious identity. The district court dismissed all but one of the plaintiffs’ claims on the basis of the state-secrets privilege. The panel held, however, that some of the claims shouldn’t have been dismissed and that the district court should have used the secrecy-protective procedure set forth in the Foreign Intelligence Surveillance Act to review the state-secrets evidence to determine whether the surveillance was unlawful.

Judge Patrick Bumatay wrote the dissent from denial of rehearing en banc. (Seven judges joined his dissent in toto; two others joined all but one subpart.)

Today’s order runs 144 pages, and I haven’t had time to digest it, much less assess the competing arguments. For those interested in discerning what is in dispute, I will present the opening paragraphs of the dissent (some citations simplified or omitted):

From the earliest days of our Nation’s history, all three branches of government have recognized that the Executive has authority to prevent the disclosure of information that would jeopardize national security. Embodied in the state secrets privilege, such discretion lies at the core of the executive power and the President’s authority as Commander in Chief. Indeed, these powers were vested in a single person precisely so that the Executive could act with the requisite “[d]ecision, activity, secrecy, and d[i]spatch.” The Federalist No. 70 (Alexander Hamilton) (emphasis added).

In contrast to the broad constitutional design of the state secrets privilege, Congress passed the Foreign Intelligence Surveillance Act for a limited function—to establish procedures for the lawful electronic surveillance of foreign powers and their agents. Among other things, FISA provides a mechanism for in camera, ex parte judicial review of electronic surveillance evidence when the government tries to use such evidence, or a surveilled party tries to suppress it.

By its plain text and context, § 1806(f) [of FISA] provides procedures to determine the admissibility of electronic surveillance evidence—a commonplace gatekeeping function exercised by courts throughout this country. When the provision is triggered, courts review only a limited set of documents, the FISA application, order, and like materials, and may generally only suppress the evidence if it was unlawfully obtained. Thus, § 1806(f) coexists with the state secrets privilege by providing judicial oversight over the government’s affirmative use of electronic surveillance evidence, while preserving the Executive’s constitutional prerogative to protect national security information.

But today, the Ninth Circuit, once again, strains the meaning of a statute and adopts a virtually boundless view of § 1806(f). Under the court’s reading, this narrow provision authorizes judicial review of any evidence, on any claim, for any purpose, as long as the party’s allegations relate to electronic surveillance. With this untenably broad interpretation, the court then rules that the judicial branch will not recognize the state secrets privilege over evidence with any connection to electronic surveillance. Most alarming, this decision may lead to the disclosure of state secrets to the very subjects of the foreign-intelligence surveillance. With this, I cannot agree.

Our court’s decision ignores that Congress articulated no directive in FISA to displace the state secrets privilege—even under the most generous abrogation standards. More fundamentally, the court should have ensured that Congress was unmistakably clear before vitiating a core constitutional privilege. When the Supreme Court confronts a legislative enactment implicating constitutional concerns—federalism or separation of powers—it has commonly required a clear statement from Congress before plowing ahead. It has done so out of a due respect for those constitutional concerns. The state secrets privilege deserves the same respect.

In discovering abrogation of the state secrets privilege more than 40 years after FISA’s enactment, our court disrupts the balance of powers among Congress, the Executive, and the Judiciary. We have previously recognized that the state secrets doctrine preserves the difficult balance among “fundamental principles of our liberty, including justice, transparency, accountability and national security.” Our refusal to reexamine this case now tips that balance in favor of inventive litigants and overzealous courts, to the detriment of national security. Moving forward, litigants can dodge the state secrets privilege simply by invoking “electronic surveillance” somewhere within the Ninth Circuit. And in defending such cases, the government may be powerless to prevent the disclosure of state secrets. For this reason, I respectfully dissent from the denial of rehearing en banc.

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