Supreme Court unanimously bolsters the state-secrets doctrine

The "state secrets" doctrine permits federal courts to protect information related to national security "in exceptional circumstances" at the behest of government agencies. Since 9/11, the circumstances in which agencies have wielded this doctrine have become increasingly less exceptional. A recent U.S. Supreme Court case, FBI v. Fazaga, 142 S. Ct. 1051 (2022), follows this trend, permitting U.S. government agencies to avoid liability for alleged post-9/11 civil rights violations against U.S. persons on U.S. soil.

The Fazaga plaintiffs alleged a well-publicized and disturbing series of events involving FBI surveillance of Muslim communities in Orange County, in 2006 and 2007. The FBI recruited an informant, Craig Monteilh, to infiltrate local mosques. According to the complaint, the agents did not limit Monteilh to specific targets, but rather repeatedly made it clear that they were interested in Muslims as such. They told him that "Islam is a threat to our national security" and that any leaders of California's Muslim community were potential threats. Monteilh's recruitment coincided with a period during which the FBI's policies moved toward allowing reliance on religion as a basis for investigation. Ultimately, members of targeted Muslim communities obtained a restraining order against Monteilh because of his violent rhetoric.

The FBI has admitted that Monteilh was an informant, and Monteilh has given numerous public statements about his actions. Despite the extensive public record, when the Fazaga plaintiffs sued for the FBI's illegal and discriminatory actions, the government asserted a state-secrets defense. As in similar cases, the government relied on a declaration by the attorney general asserting that national security would be harmed if the government had to disclose the identities of individuals who were or were not the subject of counterterrorism investigations, the reasons for any investigations, and the particular sources and methods used.

The district court relied on the government's state-secrets assertion to dismiss Fazaga before discovery. The plaintiffs appealed, arguing that the state-secrets privilege did not apply to their illegal surveillance claims under the Foreign Intelligence Surveillance Act. The 9th U.S. Circuit Court of Appeals held that FISA procedures preempted the federal common law state-secrets doctrine. The 9th Circuit would have allowed the plaintiffs to proceed with their illegal surveillance claims, albeit subject to the high hurdles of stringent FISA procedures. A unanimous Supreme Court reversed the 9th Circuit, holding that the state-secrets doctrine provides a separate path for the government to obtain a dismissal of illegal surveillance claims on national security grounds.

The state-secrets doctrine traces its origin to the post-Civil War period. In Totten v. United States, 92 U.S. 105, 107 (1876), the U.S. Supreme Court held for the first time that, in exceptional circumstances, courts must act in the interest of the country's national security to prevent the disclosure of state secrets. In that case, the estate of a Union spy sued the federal government for wages promised pursuant to a secret government contract. The Supreme Court dismissed the suit because it could not be adjudicated without revealing sensitive information about government espionage.

Another seminal case, United States v. Reynolds, 345 U.S. 1 (1953), reversed a directed verdict against the government by the widows of a government contractor's employees killed in a military airplane accident. The government refused to produce relevant information because it involved "a highly secret mission." The Supreme Court held that the government could properly refuse to produce such evidence.

The Totten and Reynolds cases created two different applications of the state-secrets doctrine. A court may determine that the case must be dismissed entirely ("the Totten bar"), or it may determine that the case may proceed but that state-secrets evidence must be excluded entirely ("the Reynolds privilege"). The Reynolds privilege may require the dismissal of claims if necessary evidence is unavailable due to the privilege.

Although the state-secrets doctrine is to be invoked only in "exceptional circumstances," the Supreme Court has not precisely delineated what constitutes such circumstances or, for that matter, what constitutes the scope of a "state secret." This is the fundamental problem with the doctrine as currently applied. As the 9th Circuit noted, "although purely domestic investigations with no international connection do not involve state secrets, we recognize that the contours of the privilege are perhaps even more difficult to draw in a highly globalized, post-9/11 environment, where the lines between foreign and domestic security interests may be blurred." Fazaga v. FBI, 965 F.3d 1015, 1041 (2020).

A good example of such blurring was seen in a case which my firm tried, Ibrahim v. Department of Homeland Security, 2016 DJDAR 9048 (9th Cir. Aug. 30, 2016). In that matter, an innocent Muslim Stanford Ph.D. student was placed on the No-Fly List due to a mistake by an FBI agent. Rather than admit to the mistake and rectify the error, the government invoked the state-secrets doctrine in an attempt to obtain dismissal of the matter. Fortunately, due to the court's scrutiny of the government's assertion of state secrets, the government's lawyers could not obtain a complete dismissal. Dr. Ibrahim ultimately prevailed on the merits of the case. Unfortunately, the assertion of the state-secrets doctrine made it much more difficult for her to clear her name.

It is well-settled law that courts may protect state secrets in extraordinary circumstances. The Supreme Court's Fazaga decision continues the trend of judicial deference to the executive branch when the state-secrets doctrine is invoked. In a post-9/11 world, this deference increasingly empowers government agencies to invoke the doctrine to protect national security but also to shield their own conduct from public scrutiny. 