ANALYSIS OF THE ARGUMENTS
By Amy Howe
November 8, 2021
Ahilan Arulanantham argues on behalf of three plaintiffs who allege religious discrimination in FBI v. Fazaga. (Art link)
The Supreme Court heard oral argument on Monday at Federal Bureau of Investigation v. Fazaga, a lawsuit filed by three Muslim Americans alleging that the FBI and its agents discriminated against them based on their religion during a surveillance program in Southern California. The question before the court is whether the case should be filed under the privilege of “state secrets” or whether – as the United States Court of Appeals for the 9th Circuit ruled – a provision of the Foreign Intelligence Surveillance Act allows it to go ahead, but allows the trial judge to rule on the merits of the case behind closed doors. After more than two hours of debate, there was little support for the 9th Circuit decision, but the judges appeared divided on the way forward with the litigation.
Representing the FBI, Deputy Attorney General Edwin Kneedler told judges that the state secrets privilege, which allows the government to withhold sensitive information in litigation, is “essential to protect national security.” The 9th Circuit, Kneedler said, ruled that Section 1806 (f) of FISA, which establishes a mechanism for a federal district judge to privately review surveillance information when a regular public hearing would harm national security, “displaces the privilege from state secrets and forces the district court to rule on the merits of plaintiffs’ claims using the information protected by the privilege. But this provision, Kneedler explained, was intended to provide a “special mechanism for suppressing evidence when the government seeks to use it against” someone. In contrast, he stressed, the government in this case seeks “to prevent the use of the information.”
Some judges were skeptical that the scope of section 1806 (f) was as narrow as Kneedler suggested. When Kneedler argued that the law was about deleting rather than producing information, Judge Elena Kagan asked, “Why isn’t it both? While “an important part of this obviously concerns the suppression” of evidence, Kagan noted, Congress might also have wanted to create a mechanism to deal with requests for sensitive information.
Judge Neil Gorsuch lobbied Kneedler that the government was not “using” the information in this case. “I think,” he told Kneedler, “there’s a pretty good argument on the other side that the government is using ‘the information’ as a way to close the case without disclosing it.” “It’s using evidence as an offensive weapon,” Gorsuch argued.
Other judges have been more receptive to Kneedler’s argument. Chief Justice John Roberts told Ahilan Arulanantham, who argued on behalf of the plaintiffs, that the FBI was using the privilege rather than the information itself. “The purpose of this” law, said Roberts, is to “prevent the use of information.” Once privilege is established, Roberts pointed out, the information cannot be used. “I don’t see how not allowing the introduction of information amounts to using the information. “
Arulanantham countered that FISA was in part aimed at combating the persecution of religious minorities and that Congress had enacted the law against an “context of abuse” which included the surveillance of Martin Luther King Jr. and a judge of the Supreme Court.
Some of the court’s conservative justices doubted Congress had passed such a significant change to state secrets privilege without doing so explicitly. Roberts observed that although Article 1806 (f) “takes up the whole page”, “there are those few words that you are relying on to displace the privilege of state secrets, for a FISA reading that has d ‘huge consequences for state secrets, for national security. Why, he wondered, “would Congress have put such strong language into this provision?” Isn’t this a roundabout way of having the consequences that you attribute to this language? “
Other judges were concerned about the impact of their ruling on the individual FBI agents the plaintiffs prosecuted. Representing these agents, lawyer Catherine Carroll told judges that it would be unfair to allow plaintiffs’ demands to go forward on the 9th Circuit approach when the government’s assertion of the privilege of secrets of The state would prevent individual defendants from presenting a defense that relies on inside information.
Judge Samuel Alito was sympathetic. He described a scenario in which a judge determines behind closed doors that FBI agents violated plaintiffs’ religious rights as “the Star Chamber.” “How,” he asked Arulanantham, “can this be consistent with due process? “
Arulanantham responded by suggesting that the courts should also consider what he described as the “mirror image” of the scenario Alito described: a situation very similar to that of his clients, in which plaintiffs would see their claims dismissed. without the possibility of a jury. trial or due process.
Alito suggested that the Arulanantham scenario was different. With a question that sparked reflections on last week’s oral arguments in the battle over Texas’ six-week abortion ban and the unusual mechanism the state has adopted to enforce the ban, Alito asked Arulanantham if he believed that “everyone who is wronged and would like to sue has a due process right to bring that lawsuit and recover.” “But more broadly,” Alito continued, “if” this is the result to which “the complainants’ argument leads,” isn’t that a powerful reason for interpreting statutory language differently? “
Justice Amy Coney Barrett was also receptive to this argument. She asked Arulanantham if, if the state secrecy dismissal isn’t a cure, individual FBI agents “stick their hands behind their backs and they’re just ducks sitting down?”
Alito and judge Brett Kavanaugh found another fault in the decision of the 9th Circuit. Alito suggested that in some cases involving state secret privilege, some evidence would be “too sensitive” even for a federal judge to consider. This would create an “incredible security problem,” he said, in district courts across the country.
Kavanaugh echoed the idea, telling Arulanantham that some information covered by state secrets privilege “isn’t the kind of information you want to circulate” – even, the former House official said. Blanche, “at the White House”.
By the time the argument ended, the most likely scenario seemed to be that the case would return to the lower courts for further proceedings, with some justices suggesting a path that would allow the Supreme Court to avoid deciding whether the Article 1806 (f) moved FISA. Complainants’ claims could still go ahead for now, even if the 9th Circuit decision does not.
A decision is expected by the summer.
This article originally appeared on Howe on the Court.