9th Circuit can restore balance in national security cases

In the almost two decades since 9/11, our nation has slowly started to restore the balance among the three branches of government on legal issues touching on national security. In two recent cases, the 9th U.S. Circuit Court of Appeals has specifically begun to rebalance the equilibrium between the executive and judicial branches of government in cases where the executive asserts the state secrets privilege. It will get a third opportunity this spring.

The first case is Fazaga v. FBI, 2019 DJDAR 1601, which arose out of an FBI investigation which sent an informant into a large, diverse community centered on a mosque in Orange County. The complaint alleges that the informant posed as a convert to Islam and, without any individual suspicion, spent 14 months gathering information about hundreds of individuals in the community. His activities included engaging in electronic surveillance. The district court summarily dismissed the case after the government invoked the state secret privilege.

The 9th Circuit panel reversed, holding that in electronic surveillance cases, Congress has specifically supplanted the state secrets privilege. Instead, in the Foreign Intelligence Surveillance Act Section 1806(f), Congress enacted special procedures for protecting national security evidence. Further, Congress expressly required courts to use those procedures to determine the legality of the challenged surveillance.

This ruling is correct: FISA has its origins in the Church Committee's investigations of the 1970s, including into the government's unlawful mass surveillance of innocent Americans during the Cold War. The Church Committee called for civil remedies that would permit ordinary Americans to challenge the legality of any future mass surveillance and to protect governmental secrets while doing so. FISA, and section 1806(f) in particular, was Congress' implementation of the Church Committee's recommendations.

The second case is Husayn v. Mitchell, 2019 DJDAR 9050, where a 9th Circuit panel held that the state secrets privilege does not prevent a court from reaching conclusions based on public evidence. The "state secret" at issue in Husayn was the fact, widely known, that the U.S. government operated a site in Poland where it held and tortured certain detainees. As the court explained and as common sense dictates, when a court decides an issue using only public evidence, nothing secret is revealed -- much less sensitive national security secrets. The court specifically noted that application of the privilege was inappropriate when the impact of the assertion is not to protect the disclosure of secret information, but rather to prevent the use of already disclosed information in a particular case. The government has asked the court to rehear both cases.

This spring the 9th Circuit has a third opportunity to help restore the balance. In Jewel v. NSA, a case where I am counsel, the court will consider whether the government can invoke the state secrets privilege to ensure dismissal of a case seeking a determination that the mass electronic surveillance of millions of Americans is illegal and unconstitutional. Today my team files its final reply brief.

Jewel arises from general seizures and searches conducted through three well-known NSA surveillance programs: the NSA's current Upstream tapping of the internet backbone at key junctures, its past actions collecting internet metadata, and its discontinued mass telephone records collection. Each of these programs has long been admitted by the government, including the fact that they each touched the communications of millions of nonsuspect Americans. Our plaintiffs are ordinary California-based customers of AT&T and other large telecom providers.

A federal judge dismissed the suit, accepting the government's claim that the state secrets privilege prevents a court from considering whether the plaintiffs had standing -- even if that consideration relies on public evidence -- unless the government agrees that the information is no longer secret. A key "secret" claimed by the government is whether telecommunications giants AT&T and Verizon participated in the admitted mass programs.

But that's no secret. In the past 13 years that this case and a predecessor case have been pending, the public has learned so much about these programs that the idea that the participation of AT&T and Verizon in them is a secret, much less a state secret, strains credulity. When we started in 2006 we had a single AT&T whistleblower witnesses, Mark Klein, who had pages of internal documents about the specific technologies used in the Upstream surveillance, including in the AT&T facility on Folsom Street in downtown San Francisco. AT&T itself then put forth a witness who confirmed the authenticity of the Klein documents. A few years after that, Edward Snowden brought forth further evidence, including an NSA inspector general's report, and placed these programs on the front pages of newspapers around the globe. Since then, several official government reports have confirmed the size and scope of the programs. Key opinions by the secretive FISA court about the programs have also been publicly released, and those which confirm not only that by design the programs touch the communications of millions of Americans, but that they consistently collect far more communications than they are actually authorized to collect.

Both Husayn and Fazaga support rejecting the government's state secrets dismissal demand in Jewel. First, Jewel arises from electronic surveillance, so the Fazaga court's ruling that Congress displaced the state secrets privilege entirely when it created the FISA law should apply. Second, even if the state secrets privilege applies, the Husayn court's ruling provides that the privilege cannot deprive a court of the ability to consider the tremendous amount of public information that supports plaintiffs' standing.

We brought Jewel because we believe our clients -- and all Americans -- deserve the right to have a private conversation. But along the way we've had to work to vindicate another core value -- that the federal judiciary reject overbroad state secrecy claims that deny it the ability to fullfill its duty to the public. It is now up to the courts to ensure that the laws that Congress passed to guarantee that Americans have legal remedies against illegal electronic surveillance are not smothered by the executive branch's overbroad claims of state secrecy. 