The U.S. Supreme Court on Friday sided with the FBI by a 9-0 vote in a case involving the state secrets privilege where three Muslim men alleged the federal government unlawfully surveilled them.
In a decision reversing the U.S. Court of Appeals for the Ninth Circuit, the Supreme Court held that the Foreign Intelligence Surveillance Act (FISA) did not displace the state secrets privilege. The state secrets privilege allows the federal government to withhold evidence if its disclosure would harm national security interests.
The case was brought by three Muslim men who alleged the federal government violated their First, Fourth, and Fifth Amendment rights when the FBI used an informant to gather information as part of a counterterrorism investigation during the aftermath of the September 11 terrorist attacks.
The parties were in dispute about section 1806(f) of the FISA law, which “permits a court to determine whether information was lawfully gathered ‘in camera and ex parte’ if the ‘Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States.’”
The Ninth Circuit reversed the lower court’s dismissal of the plaintiff’s claims, holding that “Congress intended FISA to displace the state secrets privilege and its dismissal remedy with respect to electronic surveillance.”
The Ninth Circuit agreed with the plaintiff’s position that FISA law and the state secrets privilege are “animated by the same concerns.”
However, the Court said the Ninth Circuit’s reasoning is “simply wrong” because the state secret privilege likely would not be invoked in many of the cases triggering section 1806(f).
The Court did not litigate the parties’ dispute regarding the statutory interpretation of section 1806(f). Instead, the Court found that, even if the plaintiff’s interpretation is correct, section 1806(f) does not displace the state secrets privilege.
The Court’s opinion relied on two reasons. First, the Court looked to the text of the FISA law.
Justice Samuel Alito wrote:
First, the text of FISA weighs heavily against respondents’ displacement argument. FISA makes no reference to the state secrets privilege. It neither mentions the privilege by name nor uses any identifiable synonym, and its only reference to the subject of privilege reflects a desire to avoid the alteration of privilege law. The absence of any statutory reference to the state secrets privilege is strong evidence that the availability of the privilege was not altered in any way.
Next, the Court looked to the application of these laws. It noted that section 1806(f) is not “at all incompatible with the state secrets privilege” because “The statute and the privilege (1) require courts to conduct different inquiries, (2) authorize courts to award different forms of relief, and (3) direct the parties and the courts to follow different procedures.”
As an initial matter, it seems clear that the state secrets privilege will not be invoked in the great majority of cases in which §1806(f) is triggered. Section 1806(f) is most likely to come into play when the Government seeks to use FISA evidence in a judicial or administrative proceeding, and the Government will obviously not invoke the state secrets privilege to block disclosure of information that it wishes to use.
Writing for the unanimous court, Justice Alito emphasized that the decision only addressed the “narrow question whether §1806(f) displaces the state secrets privilege.”
Because we conclude that §1806(f ) does not have that effect under either party’s interpretation of the statute, we do not decide which interpretation is correct. Nor do we decide whether the Government’s evidence is privileged or whether the District Court was correct to dismiss respondents’ claims on the pleadings.
Friday’s decision is the second Supreme Court ruling that dealt with the state secret privilege this week.
On Thursday, the Court ruled against senior al Qaeda lieutenant Abu Zubaydah in his lawsuit seeking to hold CIA officials accountable for alleged “enhanced interrogation: that occurred while he was being held in Poland.
Once again, overturning a Ninth Circuit decision, the Court found that the appeals court “erred in holding that the state secrets privilege did not apply to information that could confirm or deny the existence of a CIA detention site in Poland.”
The case is FBI v. Fazaga, No. 20-828 in the Supreme Court of the United States.
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