FBI vs. Fazaga: The Role of State-Secrets Privilege in Due Process

By: Jackson Alsup

FBI v. Fazaga, a pending case before the Supreme Court, has the potential to drastically change the way due process is carried out when pertaining to litigation of the federal government.

As a part of post 9/11 anti-terrorism efforts, the FBI orchestrated a sting operation for fourteen months in 2006-2007, codenamed Operation Flex. The purpose of the operation was to assess and identify potential terrorist threats within the Muslim community, specifically targeting one mosque in Orange County, California. The FBI informant publicly converted to Islam, and recorded conversations with many members of the mosque. After being unsuccessful in finding any potential threat, the informant began to question other mosque members about “jihad and armed conflict” [1]. The mosque leaders then reported him to the FBI and were able to secure a restraining order against him, ending the FBI operation.
Later, in 2009, as a part of a separate fraud case, the informant was revealed as Craig Monteilh, and the FBI then confirmed his position in the bureau. This prompted a class-action lawsuit from three members of the mosque, citing eleven causes of action against the FBI. The plaintiffs filed these charges under two categories: unconstitutional searches and unlawful discrimination. The causes of action pertaining to unlawful discrimination included violations of the First Amendment, the Fifth Amendment, the Religious Freedoms Act of 1993, the Federal Tort Claims Act, and the Privacy Act of 1974. The causes of action relating to the unconstitutional searches included violations of the Fourth Amendment as well as the Foreign Intelligence and Surveillance Act of 1978 (FISA) [2].
However, the FBI invoked the state -secrets privilege, stating national security could be put at risk if facts about the operation were disclosed for the purpose of the case, and the district court dismissed all charges filed against the bureau. The Ninth Circuit later reversed this decision, stating that Section 1806(f) of FISA displaces the state -secrets privilege in the parameters of this case. This conflict between the FBI’s state -secrets privilege and Section 1806(f) is the basis by which the case made its way to the Supreme Court for further ruling.

The Conflicting Legislation
Section 1806(f) of FISA allows the courts to “review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted” [3]. Simply put, this means that whenever the state’s secret privilege is invoked, the judge presiding over the case may meet with only one party in private to determine if the surveillance was obtained legally. This is the basis by which the Ninth Circuit Court decided to allow the charges to proceed. The state -secrets clause is an evidentiary rule that allows the federal government to not disclose information pertaining to a case if it could threaten national security. FBI v. Fazaga is under Supreme Court ruling due to the relationship between these two. The plaintiffs argue that FISA allows a judge or third party to consider the evidence and determine its impact on national security, while the FBI has taken the position that Section 1806(f) is completely unrelated to the situation, and that even if it were, it would not displace the state-secrets privilege.

Case Significance
At surface level, this case presents a hyper-specific conflict between two relatively infrequent legal doctrines. However, for the Supreme Court to rule on the case, they will most likely have to consider the broader subject: the power of state -secrets privilege. The privilege stems from legal precedent of United States v. Reynolds [4], where it was ruled that the Constitution supports this practice. As it currently stands, the government supports the view that since the privilege has constitutional roots, it is unable to be overpowered or altered by any non-constitutional federal legislation. This is incredibly problematic, and is why the outcome of this case will be so impactful.
The way, as of now, that the privilege is invoked is solely through the Justice Department, and them alone. The sensitive information about the case goes through the Assistant Attorney General, then the State Secrets Review Committee (members of which are selected by the Attorney General), and lastly, the Attorney General, who makes the final decision on whether or not the Justice Department will invoke/support the privilege [5]. So following its current application and the government’s position, the privilege is indisputable, approved by only one department of government, done completely in private, and completely by unelected officials. Not only this, but if the Supreme Court rules in favor of the FBI in this case, it will likely set the precedent that this process is unchangeable by anything short of a Constitutional Amendment. It would greatly increase governmental power, rendering possible victims of injustice unable to appeal the wrongdoing against them to the courts. It would affirm a unilateral process by which the government can, and historically has, abused the privilege to hide its own misdeeds and negligence. In fact, the case United States v. Reynolds, that established the privilege, was an example of the federal government invoking the privilege to hide its negligence in several civilian deaths [6]. Beyond that, it would create an imbalance in the current checks and balances system, greatly decreasing the powers of the legislative and judicial system to question this privilege of the executive.
However, if the court sides with Fazaga, despite the seeming narrowness of the case, it will likely set the precedent for the way that this privilege is used is subject to change as Congress sees fit. It would allow legislation to be passed to alter the abilities of the doctrine if need arose. Specifically, if the Supreme Court rules that Section 1806(f) does indeed displace the privilege, it would allow for ex parte and in camera review that would allow for a judge to themself decide whether or not evidence is a genuine national security threat if utilized. It would become considerably harder for the privilege to be used inappropriately, as the government would have to not only convince its own officials that it is indeed necessary, but also the presiding judge. Any degree of change limiting the scope of this power would be beneficial to the American justice system as a whole. It would give more power to individuals genuinely wronged by the federal government, and assure confidence in the minds of potential plaintiffs that justice for them is indeed now a possibility. If the Supreme Court sides with almost any part of Fazaga’s position in the case, to near any degree, the power of the American people would drastically increase, setting a legal precedent that favors people over government. The case is set to be ruled upon by June 2022, and has potential to be a landmark case in the way our justice system operates.

[1] Claire Piorkowski & Antonio Ellorin, Issues: FBI v. Fazaga, CORNELL LEGAL INFORMATION INSTITUTE, https://www.law.cornell.edu/supct/cert/20-828.

[2] Id.

[3] 50 U.S.C. § 1806(f).

[4] United States v. Reynolds, 345 U.S. 1 (1953).

[5] U.S. Dep’t of Justice, Memorandum on Policies and Procedures Governing Invocation of the State Secrets Privilege (Sept. 23, 2009), https://www.justice.gov/sites/default/files/opa/legacy/2009/09/23/state-secret-privileges.pdf.

[6] United States v. Reynolds, 345 U.S. 1.