Supreme Court In Muslim Surveillance Case Says State Secrets Doctrine Survives FISA

The U.S. Supreme Court today, in a unanimous opinion written by Justice Alito issued a narrow decision in Federal Bureau of Investigation v. Fazaga, (Sup. Ct., March 4, 2022). The case involves a class action lawsuit filed by Muslims in California who claim they were subjected to illegal surveillance. The district court dismissed the suit under the "state secrets" doctrine.  The 9th Circuit reversed holding that FISA displaced the state secrets doctrine. The Supreme Court held that FISA does not displace the state secrets doctrine, but did not resolve the parties disagreement about the interpretation of the relevant portion of FISA, nor did it decide whether the district court was correct in dismissing the suit on the pleadings. Deseret News reports on the decision.

Supreme Court Will Hear Oral Arguments In FISA And Muslim Surveillance

The U.S. Supreme Court this morning will hear oral arguments in Federal Bureau of Investigation v. Fazaga. This case grows out of a suit for damages against FBI agents for discriminatory surveillance of Muslims in California. The issue for the Supreme Court is whether a provision in FISA displaces the state secrets privilege to allow the district court to move ahead in camera, rather than dismissing the claims. Here is the SCOTUS blog case page with links to all of the filings in the case. The arguments will be streamed live by the Court at 10:00 AM from this link. Al Jazeera has a lengthy report on the background of the case. When the transcript and audio of today's oral arguments become available, I will update this post with links.

UPDATE: Here are links to the transcript and audio of the oral arguments. AP reports on the oral arguments.

Supreme Court Grants Cert. In Challenge To Surveillance of Muslims

The U.S. Supreme Court today granted review in Federal Bureau of Investigation v. Fagazi, (Docket No. 20-828, certiorari granted 6/7/2021). (Order List). In the case, a 3-judge panel of the 9th Circuit held that three Muslim plaintiffs may move ahead with many of their claims growing out of an FBI investigation that they allege involved unlawful searches and anti-Muslim discrimination. Subsequently the panel filed an amended opinion and the 9th Circuit denied en banc review. However, ten judges joined all or most of an opinion dissenting from the denial of en banc review. At issue is the relationship between the provisions of FISA and the state secrets privilege. Here is the SCOTUSblog case page with links to all the filings in the case. Politico has additional background.

9th Circuit: En Banc Review Denied In Suit Over FBI Surveillance of Muslims

In February 2019, a 3-judge panel of the 9th Circuit in Fazaga v. Federal Bureau of Investigation held that three Muslim plaintiffs may move ahead with many of their claims growing out of an FBI investigation that they allege involved unlawful searches and anti-Muslim discrimination. (See prior posting.) Now in Fazaga v. Federal Bureau of Investigation, (9th Cir., July 20, 2020), the panel filed an amended opinion and the court denied en banc review. Five judges joined an opinion concurring in the denial of en banc review. Ten judges joined all or most of an opinion dissenting from the denial of en banc review. At issue was the relationship between FISA and the state secrets privilege.

Procedures For Inclusion On Terrorist Watch List Are Unconstitutional

In Elhady v. Kable, (ED VA, Sept. 4, 2019), a Virginia federal district court held that the procedures for including individuals in the U.S. government's Terrorist Screening Data Base ("Watchlist") violate plaintiffs' constitutional rights. The court held that plaintiffs' liberty interests are implicated by their inclusion in the Terrorist Watch List, and the process used to place a person on the list poses a substantial risk of erroneous deprivation of their rights to domestic and international travel, as well as interference with their reputational interests. RNS reporting on the decision notes that the case was brought by CAIR on behalf of 23 Muslim U.S. citizens who say they were wrongly placed on the list.

9th Circuit: Suit Against FBI For Anti-Muslim Surveillance May Move Ahead

In Fazaga v. Federal Bureau of Investigation, (9th Cir., Feb. 28, 2019), the U.S. 9th Circuit Court of Appeals in a 103-page opinion held that three Muslim plaintiffs may move ahead with many of their claims growing out of an FBI investigation that they allege involved unlawful searches and anti-Muslim discrimination. The court in a lengthy summary of its holdings said in part:

Addressing plaintiffs’ claims arising from their allegations that they were targeted for surveillance solely because of their religion, the panel first held that the First Amendment and Fifth Amendment injunctive relief claims against the official-capacity defendants may go forward. Second, concerning plaintiffs’ Bivens claims seeking monetary damages directly under the First Amendment’s Establishment and Free Exercise Clauses and the equal protection component of the Fifth Amendment’s Due Process Clause, the panel concluded that the Privacy Act and the Religious Freedom and Restoration Act (“RFRA”), taken together, provided an alternative remedial scheme for some, but not all, of their Bivens claims....  Fourth, concerning plaintiffs’ claims that Agent Defendants and Government Defendants violated RFRA by substantially burdening plaintiffs’ exercise of religion, and did so without a compelling government interest without the least restrictive means, the panel held that it was not clearly established in 2006 or 2007 that defendants’ covert surveillance violated plaintiffs’ freedom of religion protected by RFRA. The panel affirmed the district court’s dismissal of the RFRA claim as to the Agent Defendants because they were not on notice of a possible RFRA violation.

UPDATE: Los Angeles Times reports on the decision.

Settlement Reached With NYPD In Muslim Surveillance Case

Last week, a settlement agreement (filed in New Jersey federal district court on April 5) (full text) was reached in Hassan v. City of New York. As reported by the New York Times, this settles the last of three major lawsuits challenging the New York City Police Department's surveillance of the Muslim community following 9/11. This suit was brought by Muslims in New Jersey who had been subjects of surveillance.  The 3rd Circuit had refused to dismiss, holding that plaintiffs had adequately stated free exercise and equal protection claims (See prior posting.)  A press release from Muslim Advocates summarizes agreement:

Under the terms of the settlement, the NYPD has confirmed it will reform its discriminatory and unlawful practices by agreeing to:

• Not engage in suspicionless surveillance on the basis of religion or ethnicity;
• Permit plaintiff input to a first-ever Policy Guide, which will govern the Intelligence Bureau’s activities, and to publish the Guide to the public;
• Attend a public meeting with plaintiffs so they can express their concerns about the issues in the lawsuit directly to the NYPD Commissioner or senior ranking official;
• Pay businesses and mosques damages for income lost as a result of being unfairly targeted by the NYPD and pay individuals damages for the stigma and humiliation harms they suffered for being targeted on the basis of their religion.

Revised Settlement Agreement Reached In Suits On NYPD Surveillance of Muslims

The ACLU on Monday announced a revised settlement agreement in two cases involving the New York Police Department's surveillance of Muslims. As previously reported, last November a federal district court judge rejected an initial settlement agreement's modifications of the so-called Handschu Guidelines that grew out of a consent decree in an earlier case on NYPD surveillance activities. The agreement announced Monday responds to the judge's concerns.  The ACLU describes the changes as follows:

Under the new enhancements, the civilian representative has even greater authority, independence, and responsibility. She is empowered to report to the court at any time if there are violations of the Handschu Guidelines, is required to report systematic violations, and must report to the court on an annual basis. The mayor is prohibited from abolishing the civilian representative position without judicial approval, and abolition by order of the court is only permitted if there have not been systemic violations of the Handschu Guidelines for the preceding three years. The civilian representative is specifically authorized to review not just the opening or extension of investigations, but also how they are conducted. In addition, the civilian representative will review the propriety of the use of undercover officers or confidential informants — a source of great concern to communities.

Judge Wants Greater Restrictions In Settlement of NYPD Muslim Surveillance Suit

As previously reported, in January the parties to a long-running class action challenging practices of the New York Police Department in surveillance Muslims reached a settlement agreement offering greater protections.  However, in Handschu v. Police Department of the City of New York, (SD NY, Oct. 28, 2016), the court rejected the proposed settlement, insisting on three additional restrictions.  As discussed in an ACLU press release on the decision:

The judge ... called for alterations that would:

Clarify the authority of an individual outside the NYPD (a civilian representative) to ensure the NYPD’s compliance with the “Handschu Guidelines” — which govern NYPD surveillance of political and religious activity — even beyond the terms of the reforms proposed by the settlement.

Require that the civilian representative established by the settlement report periodically to the court on the NYPD’s compliance. 

Require the mayor to seek court approval before abolishing the position of civilian representative.

New York Times reports on the decision.

Investigation Says NYPD Does Not Stick To Guidelines In Surveilling Muslims

The New York Police Department yesterday released an Inspector-General's report titled An Investigation of NYPD’s Compliance with Rules Governing Investigations of Political Activity.  Some 95% of the police investigations reviewed by the IG involved "individuals... predominantly associated with Muslims and/or engaged in political activity that those individuals associated with Islam." Here is an excerpt from the report:

[B]efore NYPD can begin investigating political activity – which could include surveillance within a mosque, church, or synagogue – it must articulate, in writing, the objective basis of need for the investigation and must secure approvals from senior NYPD officials. Further, permission is not open-ended; rather, it runs for a certain period of time, at the end of which NYPD must apply for (and justify) an extension or otherwise end the investigation. The thresholds for obtaining and extending permission in this area are not particularly high. The rules were amended after September 11, 2001, to accommodate the increased threat to the City.

OIG-NYPD’s investigation found that NYPD, while able to articulate a valid basis for commencing investigations, was often non-compliant with a number of the rules governing the conduct of these investigations.

VICE News discusses the NYPD report.

Settlement Reached In Suit Over NYPD Surveillance of Muslims

In 2013, a suit captioned Raza v. City of New York was filed in a New York federal district court challenging the constitutionality of the New York Police Department's surveillance program directed at Muslim religious and community leaders, organizations, businesses and at mosques. (See prior posting.) The NYPD was already operating under the Handschu Guidelines that grew out of a consent decree in an earlier case on NYPD surveillance activities.  In 2013, a motion was also filed in that case claiming that the consent decree had been violated. A press release from the ACLU yesterday reports that after several months of negotiations the parties have agreed on a settlement in both cases.  The settlement involves court adoption of modifications to the Handschu Guidelines to offer greater protections.  As summarized by ABC News:

Under the deal, the Handschu guidelines will specifically ban investigations based on race, religion or ethnicity. Other provisions require the department to use the least intrusive investigative techniques possible and to consider "the potential effect on the political or religious activity of individuals, groups or organizations and the potential effect on persons who, although not a target of the investigation are affected by or subject to the technique."

The settlement also sets time limits for ending investigations that ultimately fail to turn up threats — 18 months for preliminary investigations, three years for full investigations and five years for terror conspiracy cases. The civilian representative, appointed by the mayor, will attend monthly meetings of police officials and NYPD lawyers who review the investigations and will have authority to report any suspected violations of the agreement to City Hall or a federal judge.

The full text of the guideline modifications are set out as Exhibit B to the January 7 Notice of Motion for Approval of Settlement in the Handschu case. A Memorandum of Law in support of the motion was filed by plaintiffs.  A Joint Motion Seeking Entry of Settlement was also filed in the Raza case, as was a Stipulation of Settlement.  Under the settlement, the NYPD will also remove a controversial report titled Radicalization in the West from the NYPD website, and the city will pay $1.671 million for plaintiffs' attorneys' fees.

3rd Circuit: Challenge To NYPD Muslim Surveillance Program May Move Forward

Yesterday the U.S. 3rd Circuit Court of Appeals in Hassan v. City of New York, (3d Cir., Oct. 13, 2015), reversed a New Jersey federal district court (see prior posting) and held that Muslim plaintiffs adequately stated free exercise and equal protection claims challenging the NYPD's Muslim surveillance program. Summarizing its holding, the court in an opinion by Judge Ambro said:

In its narrowest form, this appeal raises two questions: Do Plaintiffs—themselves allegedly subject to a discriminatory surveillance program—have standing to sue in federal court to vindicate their religious-liberty and equal protection rights? If so, ..., have they stated valid claims under the First and Fourteenth Amendments to our Constitution? Both of these questions, which we answer yes, seem straightforward enough. Lurking beneath the surface however, are questions about equality, religious liberty, the role of courts in safeguarding our Constitution, and the protection of our civil liberties and rights equally during wartime and in peace.

In concluding that plaintiffs have standing, the court said in part:

The City ... argues that Plaintiffs have suffered no injury-in-fact because it has not overtly condemned the Muslim religion.... This argument does not stand the test of time. Our Nation’s history teaches the uncomfortable lesson that those not on discrimination’s receiving end can all too easily gloss over the “badge of inferiority” inflicted by unequal treatment itself. Closing our eyes to the real and ascertainable harms of discrimination inevitably leads to morning-after regret.

Reflecting on history's lessons, the court said:

What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight—that “[l]oyalty is a matter of the heart and mind[,] not race, creed, or color...

Judge Roth filed a short concurring opinion on the issue of level of scrutiny that should be applied.  She said in part:

I differ from the majority in its failure to determine whether “intermediate scrutiny” or “strict scrutiny” applies here....

In my opinion, “intermediate scrutiny” is appropriate here. I say this because “intermediate scrutiny” is the level applied in gender discrimination cases. I have the immutable characteristic of being a woman. I am happy with this condition, but during my 80 years on this earth, it has caused me at times to suffer gender discrimination. My remedy now for any future gender discrimination would be reviewed with“intermediate scrutiny.” For that reason, I cannot endorse a level of scrutiny in other types of discrimination cases that would be stricter than the level which would apply to discrimination against me as a woman.

AP reports on the decision.

Court Says Muslim Surveillance Documents May Not Be Withheld Under FOIA "Law Enforcement" Exemption

In ACLU of North California v. FBI, (ND CA, March 23, 2015), in a Freedom of Information Act suit, a California federal district court held that the FBI cannot use the exemption for records compiled for law enforcement purposes to withhold documents relating to the investigation and surveillance of Muslim communities, and collection of ethnic and racial data, in Northern California. The court said:

In short, the FBI employs many various techniques to combat unlawful activity, some of which, if publicly disclosed, would undermine their effectiveness. 

That this may well be true does not, without more, permit the FBI to apply Exemption 7 [the "law enforcement" exemption] to withhold or redact information about such tactics, however. Neither the Hardy declarations nor the FBI’s pleadings tether the activities the withheld documents concern to the enforcement of any particular law....  Exemption 7 is not the appropriate umbrella under which to shield these documents from public view.

The ACLU's blog has more information on the decision.

3rd Circuit Hears Arguments In Muslim Challenge To NYPD Surveillance

Yesterday the U.S. Third Circuit Court of Appeals heard oral arguments in Hassan v. City of New York. (Audio of full oral arguments.)  The case involves a constitutional challenge to the New York City Police Department's surveillance of the Muslim community in New Jersey following 9/11. The district court had dismissed the case both for lack of standing and failure to show intentional discrimination. (See prior posting.)  NorthJersey.com reports on the case.

Report Says Muslim-Americans Included In NSA-FBI E-mail Monitoring

According to a lengthy report at The Intercept today, documents from whistleblower Edward Snowden reveal that the NSA and FBI have secretly monitored e-mails of several prominent Muslim-Americans, including Nihad Awad (executive director of CAIR),  Agha Saeed (former Cal State professor and Muslim civil liberties activist); Hooshang Amirahmadi (Iranian-American Rutgers professor); Asim Ghafoor (attorney who has represented clients in terrorism cases); and Faisal Gill (Republican Party operative who served in Department of Homeland Security). The FBI is listed as the "responsible agency" for monitoring of these five individuals.  The reasons for including their e-mail addresses in the nearly 7,500 monitored remain classified.

UPDATE: The Office of the Director of National Intelligence and the Department of Justice on July 9 issued a statement (full text) apparently in response to The Intercept report, saying in part:

It is entirely false that U.S. intelligence agencies conduct electronic surveillance of political, religious or activist figures solely because they disagree with public policies or criticize the government, or for exercising constitutional rights..... On the other hand, a person who the court finds is an agent of a foreign power under this rigorous standard is not exempted just because of his or her occupation.

NYPD Asks Arrested Muslims To Become Anti-Terrorism Informants

In a front page article, today's New York Times reports that a special New York Police Department detective squad-- the Citywide Debriefing Team-- is regularly recruiting Muslims arrested on minor charges to become informants for the Department's anti-terrorism Intelligence Division. The Times describes the experience of several men:

Waiting in a New York station house cell or a lockup facility, expecting to be arraigned, only to be pulled aside and questioned by detectives. The queries were not about the charges against them, but about where they went to mosque and what their prayer habits were. Eventually, the detectives got to the point: Would they work for the police, eavesdropping in Muslim cafes and restaurants, or in mosques?

These revelations come less than a month after a lawsuit was filed in New York claiming that the FBI uses the No Fly List to coerce American Muslims to become informants. (See prior posting.)

NYPD Ends Muslim Neighborhood Surveillance Unit

The New York Times yesterday reported that the New York Police Department is dropping its controversial Demographics Unit that has sent plainclothes detectives into Muslim neighborhoods to secretly monitor individuals. The reassignment of detectives that has inactivated the Unit appears to be part of new Police Commissioner William Bratton's attempt to build better relations with minority communities.

Court Passes On Discovery Requests In Case Challenging NYPD's Surveillance Of Muslims

In Raza v. City of New York, (ED NY, Nov. 22, 2013), a New York federal district court ruled on challenged discovery requests in a lawsuit by 3 individuals, 2 mosques and a non-profit who claim that the NYPD engaged in unconstitutional surveillance and investigation of Muslim leaders, organizations, businesses and mosques. (See prior posting.)  The court permitted discovery of documents specifically concerning plaintiffs, and information regarding the structure of the NYPD Intelligence Division. It also permitted

discovery regarding any NYPD policy or program involving the investigation of Muslims as a group based, in whole or part, on their religion. Without this discovery, Plaintiffs would be preemptively and irreparably prohibited from proving that Defendants’ alleged discriminatory intent was a motivating factor in the investigation and surveillance of Plaintiffs.

However the court denied plaintiffs' request for information on all NYPD investigations and surveillance of Muslims (whether or not based on their religion) and all investigations and surveillance of non-Muslims on the basis of their religious beliefs or practices. The court concluded that "these requests are, at best, of limited probative value or relevance and, at the same time, impossibly burdensome." Huffington Post yesterday reported on the decision.