Federal Bureau of Investigation v. Fazaga
Supreme Court of the United States
Argued November 8, 2021
Decided March 4, 2022
Full case nameFederal Bureau of Investigation, et al. v. Yassir Fazaga, et al.
Docket no.20-828
Citations595 U.S. ___ (more)
ArgumentOral argument
Court membership
Chief Justice
John Roberts
Associate Justices
Clarence Thomas · Stephen Breyer
Samuel Alito · Sonia Sotomayor
Elena Kagan · Neil Gorsuch
Brett Kavanaugh · Amy Coney Barrett
Case opinion
MajorityAlito, joined by unanimous
Laws applied
Foreign Intelligence Surveillance Act of 1978

Federal Bureau of Investigation v. Fazaga, 595 U.S. ___ (2022), was a United States Supreme Court case dealing with the use of law enforcement surveillance under the Foreign Intelligence Surveillance Act of 1978 (FISA) and the state secrets privilege defense. The case stems from a 2011 class action lawsuit filed against the Federal Bureau of Investigation (FBI) related to one of its surveillance operations. In August 2012, the district court dismissed the case on the basis of the FBI's invocation of state secrets privilege. The Ninth Circuit overturned this ruling in part in 2019, ruling that FISA precluded the defendants from invoking the state secrets defense. However, the Supreme Court overturned the Ninth Circuit’s ruling in a unanimous decision in March 2022, stating that FISA does not override the state secrets defense.

Background

In 2006, the FBI and the Orange County, California Joint Terrorism Task Force ran Operation Flex, a counterterrorism operation, by recruiting a fitness instructor, Craig Monteilh, to become an informant. Monteilh, under an assumed name, pretended to convert to Islam and joined the Islamic Center of Irvine (ICOI) in Irvine, California.[1] In addition to his own gathering of information, Monteilh wore and planted recording devices throughout the mosque and in homes and businesses of ICOI members that Monteilh came to know personally, passing on the information to the FBI. After about a year, Monteilh began making statements about taking violent action while in the presence of ICOI. He was reported to the police and put under a restraining order from ICOI. The FBI lost confidence in Monteilh and ended the operation.[2][3]

Monteilh was convicted of grand theft in connection with the distribution of steroids in a separate matter in 2008, and ended up in California state prison. In April 2008, he was stabbed repeatedly in prison after being labelled a snitch. Monteilh filed a lawsuit against the FBI, stating that they failed to protect him after using him for their investigation, and made numerous details of Operation Flex public in 2009 prior to filing his suit against the FBI in 2010.[4] Monteilh also spoke to these details of Operation Flex in a 2009 case the FBI brought against Ahmad Niazi, an Afghan immigrant that Monteilh had attempted to blackmail to become an FBI informant, though charges against Niazi were eventually dropped.[5]

Lower courts

Three members of ICOI, using Monteilh's information, filed a lawsuit in the U.S. District Court for the Central District of California in 2011 against the United States, the FBI, and several FBI agents involved in Operation Flex.[1] The plaintiffs alleged that they were subject to unconstitutional law enforcement surveillance under eleven causes of action, including FISA, First, Fourth, and Fifth Amendment rights, and other laws related to the use of mass surveillance and religious profiling. They also sought class certification.[2][6] The American Civil Liberties Union was the lead counsel for the plaintiffs; the Council on American-Islamic Relations was also involved.[7][8] Monteilh also provided more information on his role as an informant to the plaintiffs.[5]

Eric Holder, the Attorney General at the time (under the Obama administration), helped defend the FBI's actions leading up to Fazaga.[9][10] The government moved to dismiss the case, invoking the state secret privilege of FISA and arguing that further litigation of the case would risk national security.[2] U.S. District Judge Cormac J. Carney agreed, stating that the FBI could not defend itself without "relying on privileged material",[2] and in August 2012, dismissed the class-action suit.[11] Judge Carney did allow FISA-related portions of the suit against the specific FBI agents to continue.[2]

The plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit. In 2019, the Ninth Circuit affirmed the district court's ruling in part and reversed in part. The Ninth Circuit found that the District Court erred in application of FISA's state secret privilege outlined in Section 1806(f), as the conditions of the three members of ICOI met the requirements of Section 1806(f): that they were an "aggrieved person" that had sought to "discover or obtain" the information the FBI had obtained on them.[2] Along with other reversals of the District Court's dismissal, the Ninth Circuit decision allowed the class-action suit to proceed.[2] The Ninth Circuit denied to rehear the case en banc in July 2020.[12]

Supreme Court

The FBI filed a petition for a writ of certiorari that asked the Supreme Court to review the Ninth Circuit's ruling and resolve the question regarding FISA Section 1806(f). The FBI stated that the specific FISA section only applied when the case dealt with charging a specific individual, and did not apply to a general challenge to their surveillance methods.[3] The Supreme Court granted certiorari in June 2021, agreeing to hear the case during its 2021–22 term.[13]

The Court ruled unanimously on March 4, 2022, reversing the Ninth Circuit and remanding the case. The opinion, written by Justice Samuel Alito, stated that Section 1806(f) of FISA does not override the state secrets privilege, as was ruled by the Ninth Circuit.

Impact

In a 2013 book on transparency in legal contexts, Bianchi noted that although public opinion supports government transparency (even when it involves security-sensitive governmental law enforcement), there are "dark sides of transparency".[14] In an opinion piece in 2014 for Al Jazeera, assistant professor of history Abdullah Al-Arian at Georgetown University criticized the use of informants in Fazaga.[15]

References

  1. 1 2 Neidig, Harper (June 7, 2021). "Supreme Court to hear case over FBI's surveillance of California mosques". TheHill. Retrieved June 8, 2021.
  2. 1 2 3 4 5 6 7 "Fazaga v. FBI". Harvard Law Review. 33: 1774. 2020.
  3. 1 2 Hurley, Laurence (June 7, 2021). "U.S. Supreme Court takes up FBI bid to block Muslim civil rights suit". Reuters. Retrieved June 7, 2021.
  4. ↑ Hernandez, Salvador (January 22, 2010). "Informant files $10 million suit against FBI". Orange County Register. Retrieved June 7, 2021.
  5. 1 2 Harris, Paul (March 20, 2012). "The ex-FBI informant with a change of heart: 'There is no real hunt. It's fixed'". The Guardian. Retrieved June 7, 2021.
  6. ↑ S Rushin (2011). "The judicial response to mass police surveillance" (PDF). U. Ill. JL Tech. & Pol'y. HeinOnline. p. 323. Retrieved February 7, 2017 – via HeinOnline. ...The American Civil Liberties Union (ACLU) has filed a class action complaint against the FBI in the Central District of California alleging that the FBI used an informant to 'indiscriminately collect personal information on hundreds and perhaps thousands of innocent Muslim Americans in Southern California.... [T]he FBI did not gather the information based on suspicion of criminal activity, [but] instead it gathered the information simply because the targets were Muslim.' ...Fazaga v. Fed. Bureau of Investigation, No. SACV11-00301 (C.D. Cal. February 22, 2011). ... {{cite web}}: External link in |via= (help)
  7. ↑ Patrik Jonsson (staff writer) (February 23, 2011). "Muslim group sues FBI over surveillance at California mosques: Council on American-Islamic Relations and ACLU say a paid FBI informant violated the First Amendment rights of worshipers at several California mosques, targeting the most devout. They sued the FBI Wednesday". The Christian Science Monitor.
  8. ↑ Bridget Freeland (February 24, 2011). "Muslims Say FBI Informant Dealt Drugs While Snooping on Believers' Sex Lives". courthousenews.com. Courthouse News Service – via masthead. ...in July 2006, FBI agents ...directed undercover informant Craig Monteilh to infiltrate the mosques in Southern California and paid him... [to] create video and audio recordings of Muslim activities, the plaintiffs' claim. ... Monteilh sued the FBI for $10 million in January 2010... In the new class action [lawsuit filed in 2011], named plaintiff Sheikh Yassir Fazaga, an imam with the Orange County Islamic Foundation, says that he can no longer counsel congregants at the mosque because they fear surveillance. Fazaga claims that since having contact with Monteilh he has been regularly delayed at airport screenings when travelling internationally] ... [the Fazaga lawsuit seeks] damages from the FBI, its Director Robert Mueller... for violations the First, Fourth and Fifth Amendments, the Privacy Act, the Religious Freedom Restoration Act and the Foreign Intelligence Surveillance Act... [plus] destruction of the information the FBI [allegedly] obtained illegally. Its lead counsel is Peter Bibring with the ACLU of Southern California... {{cite web}}: External link in |via= (help)
  9. ↑ Matt Coker (August 5, 2011). "Attorney General Eric Holder Chastised for Move to Quash Suit Against FBI for Spying on Muslims in OC". OC Weekly.
  10. ↑ SJ Rascoff (2012). "Establishing official Islam? The law and strategy of counter-radicalization" (PDF). p. 158 and 189 – via SSRN. ...Charlie Savage, F.B.I. Agents Get Leeway to Push Privacy Bounds, N.Y. TIMES, June 13, 2011, at A1. An unflattering portrait of FBI intelligence gathering in certain California mosques emerges in a civil rights complaint in Fazaga v. FBI, No. SA11-CV0-00301CJC (C.D. Cal. February 22, 2011). The government asserted the state secrets privilege in response. See Notice of Motion and Motion to Dismiss and for Summary Judgment at 22–35, Fazaga, No. SA11-CV0-00301CJC (C.D. Cal. August 1, 2011).... ...Although the Obama Administration committed itself to more limited use of the state secrets privilege, it has not shied away from raising state secrets in lawsuits, including those alleging violations of the First Amendment's Religion Clauses. See, e.g., Declaration of Eric H. Holder, Attorney General of the United States at 1–2, Fazaga v. FBI, No. SA11-CV0-00301CJC (C.D. Cal. February 22, 2011) (asserting the state secrets privilege in a suit alleging First Amendment violations through FBI surveillance of a mosque). ... {{cite web}}: External link in |via= (help)
  11. ↑ Greenberg, Ivan (2012). Surveillance in America: Critical Analysis of the FBI, 1920 to the Present. Lexington Books. pp. 31–. ISBN 9780739172476. Retrieved February 7, 2017.
  12. ↑ "Surveillance". Courthouse News. July 20, 2020. Retrieved June 7, 2021.
  13. ↑ Stohr, Greg (June 7, 2021). "State Secrets Clash Draws U.S. Supreme Court Review". Bloomberg News. Retrieved June 7, 2021.
  14. ↑ Andrea Bianchi and Anne Peters, ed. (2013). "Transparency in international law". p. 2. ...In contrast, the opposites of transparency, such as secrecy and confidentiality, have taken on a negative connotation... largely considered as manifestations of power and, often, of its abuse. ...we no longer see why one should be secretive about their business, whatever the latter is. All the more so if the activity in question concerns the administration of the public good. Not even in such areas as security and public order is public opinion particularly in favour of tolerating restrictions on transparency. The State secrets privilege that is often invoked in courtrooms to shield government officials against scrutiny in security-sensitive cases causes most people to frown. ...the recent decision concerning an FBI programme of surveillance on the civilian population; US Central District Court of California, Southern Division, Fazaga v. FBI, Decision of 14 August 2012, 2012 WL 3327092. ... Overall, the world to which we aspire is a transparent one. The purpose of the following remarks is to call the wisdom of this aspiration into question by investigating a few of the dark sides of transparency...
  15. ↑ Abdullah Al-Arian (assistant professor of history at Georgetown University, School of Foreign Service in Qatar) (July 21, 2014). "The informants: Manufacturing terror: The use of informants to target communities is one of the most alarming trends to have developed since 9/11". Al Jazeera.
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