Bloomberg Law
Nov. 8, 2021, 6:02 PMUpdated: Nov. 8, 2021, 7:56 PM

Justices Seek to Avoid ‘Drive-By’ Ruling on National Security (1)

Kimberly Strawbridge Robinson
Kimberly Strawbridge Robinson

The U.S. Supreme Court seemed likely to rule narrowly in a case about government surveillance in order to avoid deciding what Justice Sonia Sotomayor called a “very knotty question” of when the U.S. can dismiss lawsuits over national security concerns.

The case heard Monday deals with the interplay between the state secrets privilege—in which the government can seek to exclude certain information by invoking it in a suit—and the Foreign Intelligence Surveillance Act—which requires that the government first disclose the information to a court to determine if it should be left out.

Several justices suggested that the court just say that the U.S. Court of Appeals for the Ninth Circuit got it wrong when it ruled that FISA totally displaces the state secrets privilege and leave the difficult questions for another day.

Sotomayor said the court should make the “narrowest ruling” and say “all we hold is that no one’s invoked [FISA] here, and we send it back for the Court below to decide how state secrets interacts with a motion to dismiss"—namely, whether the government can invoke the privilege, and, if so, whether it can use it to dismiss the plaintiffs’ First Amendment claims at this early stage.

“I feel like we’d be doing a drive-by in this case on a massively important issue if we get into that,” Justice Brett Kavanaugh said.

He also suggested the case may work its way back to the Supreme Court. “All these kinds of issues can be fleshed out and come back to us where that’s the central focus of the case,” he said.

The case was brought by Sheikh Yassir Fazaga and others after they discovered that the FBI engaged an informant to gather information on Muslim communities starting in 2006. They alleged the FBI violated their religious rights by targeting them solely because they are Muslim.

‘Super Secret’

Representing the government in the argument that blew past its allotted 80 minutes and ran for more than two hours, Edwin Kneedler said the government invoked the state secrets privilege because “the adjudication of the case, if it went forward, would concern the sources and methods, et cetera, of the foreign intelligence investigation.”

That information is so central to the case that the plaintiff’s First Amendment claims can’t be litigated without that sensitive information, Kneedler said, adding that’s why the district court dismissed those claims all together.

Justice Stephen Breyer wondered why a federal judge couldn’t at least look at the information to determine if the case could go forward, without having to just take the word of the government.

“My point is there should be a way to look at the information for the court and decide what to do,” whether FISA applies or not, Breyer said.

Kneedler agreed that it was appropriate for courts to look into the validity of the assertion of privilege.

Justice Samuel Alito pushed back on whether it was always appropriate for judges to look at sensitive information.

“Wouldn’t that be quite something?” Alito asked. “Because just dealing with some super-secret information in district courthouses around the country would create an incredible security problem. Most of the district courts don’t have the facilities to deal with information of that sensitivity,” Alito added.

FISA was “passed in the wake of extensive abuses” of electronic surveillance by the federal government and so the whole point of the act was “to bring the courts in,” said Fazaga’s attorney Ahilan Arulanantham.

Run the Gambit

Kneedler said the district court looked at the information to determine whether the government had correctly asserted the privilege and whether dismissal was necessary.

The Ninth Circuit went too far in saying that FISA review process displaced the privilege in every situation. It was meant to apply to a narrow set of circumstances, Kneedler said.

Chief Justice John Roberts agreed, asking why “would Congress put such significant language stuck in this provision,” noting that the language the Ninth Circuit used to subvert the state secrets privilege is “squirreled away” in the statute.

“Isn’t that an oblique way to have the consequences you’re ascribing to that language?” Robert asked Arulanantham.

Even if the justices end up overruling the Ninth Circuit, Breyer suggested that it wouldn’t really matter to the plaintiffs, because all they want is their suit revived, something the court seemed likely to do.

“So do you really care whether the government’s right or wrong on the displacement of the state secrets doctrine by 1806 or whatever?” Breyer asked.

Arulanantham agreed, saying a ruling telling the Ninth Circuit to take a look at the assertion of the privilege would be appropriate at this early stage in the litigation.

Justice Amy Coney Barrett noted that in the end the government could still prevail.

“Even after you run through the gamut” and “conclude, listen, this was unlawfully obtained, you’re conceding that the state secrets privilege could kick in and still keep it out?” she asked Arulanantham.

Sure, Arulananatham said. “That being said, I feel all of this—we’re so far ahead of it,” he added.

The case is FBI v. Fazaga, U.S., No. 20-828.

(Updates with quotes from the argument starting in paragraph 3.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at