Metropolitan News-Enterprise


Tuesday, July 21, 2020


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No En Banc Rehearing in Case in Which State Secrets Defense Is Denied FBI


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday denied a petition to rehear en banc a case in which a three-judge panel held that the FBI could not assert a state secrets privilege to shield itself from unlawful search and surveillance allegations by Muslim residents in Orange County.

Judge Marsha S. Berzon wrote the Feb. 28, 2019 opinion, an amended version of which was filed yesterday. Much of it is was grounded in the language of a provision of the Foreign Intelligence Surveillance Act (“FISA”) which establishes procedures for electronic surveillance

The court’s decision to deny a rehearing triggered a 26-page dissent from Judge Patrick J. Bumatay, who wrote that the panel took an “untenably broad interpretation” of FISA that “seriously degrades the Executive’s ability to protect our nation’s secrets.”

Purpose of Provision

Berzon said that state secrets privilege could not be invoked as a dismissal remedy because the FISA provision in issue, 50 USC §1806(f)—which provides for an in camera and ex parte review of materials derived from electronic surveillance—was “designed precisely for matters implicating national security concerns” and applied neatly to the plaintiffs’ claims against the government.

The plaintiffs’ claims stemmed from an FBI investigation targeting members of an Islamic mosque in Orange County. Beginning in 2006, an FBI informant gathered information about mosque members while posing undercover as a converter to Islam.

The plaintiffs asserted that the informant illegally surveilled them for more than a year without cause. The government claimed state secret privilege barred plaintiffs from pursuing a class action against the FBI.

District Court Judge Cormac J. Carney of the Central District of California dismissed all but one of plaintiffs’ claims on the basis of state secrets privilege.

Court’s Order

Berzon observed that Carney’s decision did not attempt to determine what is considered classified information, nor did it interfere with national security. He only addressed the narrow issue of how a court should handle a civil complaint that involves sensitive government information, she said.

The jurist remarked that a judge should handle the issue by reviewing sensitive information ex parte or in camera. At that point, she said, the judge can determine whether the claims should move forward or be dismissed.

Berzon wrote:

“The government uses these very same procedures all the time when prosecuting suspected terrorists; the government does so by choice, and without any evidence handwringing over whether the use of the §1806(f) procedures might lead to the disclosure of state secrets.”

Dissenting Opinion

Bumatay took the position that §1806(f) “coexists with the state secrets privilege by providing judicial oversight over the government’s affirmative use of electronic surveillance evidence.” He said Berzon’s opinion “strains the meaning of a statutes and adopts a virtually boundless view of §1806(f).”

The dissenter raised concerns that Berzon’s “displacement” of the state secrets privilege amounted to an erosion of executive authority that upset the balance of powers between courts and the executive branch.

He offered numerous historical examples where presidents, including Washington and Jefferson, invoked executive privilege to avoid disclosing secret government information in the interest of national security.

Responds to Dissent

However, Berzon insisted that Bumatay’s discussion is a distraction from the main issue at hand, declaring:

“The question presented to the panel here was not whether the government should be able to keep classified material secret but how.”

She wrote:

“The dissent portrays the state secrets privilege as a magic wand that the Executive may wave to remove certain information from litigation, or, if necessary, end the case. Not so.”

Joining in Berzon’s opinion were Circuit Judge Ronald M. Gould and District Court Judge George Caram Steeh III of the Eastern District of Michigan, sitting by designation.

Fully agreeing with Bumatay were Judges Consuelo M. Callahan, Sandra S. Ikuta, Mark J. Bennett, Ryan D. Nelson, Bridget Shelton Bade, Kenneth Kiyul Lee and Lawrence Vandyke. Judges Daniel Aaron Bress and Daniel P. Collins joined in the dissent except for a portion in which he remarked that it was “doubtful” that §1806(c) applies.

That section requires that the government alert an “aggrieved person” of its intent to use in a proceeding evidence gained through electronic surveillance. Bumatay said “there was no proceeding against ‘an aggrieved person.’ ”

The case is Fazaga v. Walls, 12-56874.


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