Federal Bureau of Investigation v. Fazaga

Federal Bureau of Investigation v. Fazaga, 595 U.S. 344 (2022), was a decision by the United States Supreme Court concerning law enforcement surveillance practices under the Foreign Intelligence Surveillance Act of 1978 (FISA) and the application of the state secrets privilege. The case originated from a 2011 class action lawsuit against the Federal Bureau of Investigation (FBI) related to a surveillance operation. In 2012, the district court dismissed the lawsuit, citing the state secrets privilege. The Ninth Circuit partially reversed this ruling in 2019, determining that FISA prohibited invoking the state secrets defense. However, in March 2022, the Supreme Court unanimously overturned the Ninth Circuit’s decision, concluding that FISA does not supersede the state secrets privilege.

Background

In 2006, the FBI collaborated with the Orange County, California Joint Terrorism Task Force to initiate Operation Flex, a counterterrorism investigation utilizing informant Craig Monteilh. Working undercover, Monteilh pretended to convert to Islam and infiltrated the Islamic Center of Irvine (ICOI) located in Irvine, California. He collected intelligence both through personal observation and by installing recording equipment inside the mosque and on properties owned by members, transmitting this information back to the FBI. After approximately one year, Monteilh reported statements indicating potential violent plans within ICOI, prompting law enforcement intervention and a restraining order. Subsequently, the FBI lost trust in Monteilh and terminated his involvement in the operation.

Monteilh was convicted in 2008 for grand theft associated with steroid distribution and sentenced to prison. In April of that year, he was assaulted in prison after being branded a snitch. He later initiated legal action against the FBI for failing to protect him following his use as an informant and publicly disclosed numerous details about Operation Flex in 2009 before filing his lawsuit in 2010. Additionally, Monteilh testified in an FBI case against Ahmad Niazi, an Afghan immigrant whom Monteilh attempted to recruit as an informant; charges against Niazi were ultimately dismissed.

Lower courts

In 2011, three members of ICOI filed suit in the U.S. District Court for the Central District of California against the United States government, the FBI, and several agents involved in Operation Flex, relying on information provided by Monteilh. The plaintiffs alleged unconstitutional surveillance by law enforcement across eleven claims, including violations under FISA as well as First, Fourth, and Fifth Amendments connected to mass surveillance and religious profiling. They also petitioned for class certification. The plaintiffs were represented primarily by the American Civil Liberties Union, with participation from the Council on American-Islamic Relations. Monteilh offered further testimony regarding his role as an informant.

Then-Attorney General Eric Holder defended the FBI’s conduct during Fazaga. The government sought dismissal of the case by asserting FISA’s state secrets privilege and contending that continuing litigation would jeopardize national security interests. U.S. District Judge Cormac J. Carney concurred that defending the FBI would require reliance on privileged information and dismissed the class-action suit in August 2012; however, he allowed certain FISA-related claims against individual agents to proceed.

The plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit, which issued a mixed ruling in 2019 by affirming some aspects while reversing others. The Ninth Circuit determined that the District Court had improperly applied FISA’s state secrets privilege under Section 1806(f), recognizing ICOI members as "aggrieved persons" entitled to access information collected by the FBI. This decision permitted continuation of the class-action lawsuit. In July 2020, a petition for rehearing en banc was denied by the Ninth Circuit.

Supreme Court

The FBI requested that the Supreme Court review the Ninth Circuit's decision regarding FISA Section 1806(f), contending that this provision is applicable solely when prosecuting a particular individual, rather than addressing broad objections to surveillance techniques. In June 2021, the Supreme Court agreed to hear the case during its 2021–22 term by granting certiorari.

On March 4, 2022, the Supreme Court unanimously overturned the Ninth Circuit’s judgment and sent the case back for further proceedings. Justice Samuel Alito authored the opinion, stating that Section 1806(f) of FISA does not supersede the state secrets privilege, in contrast to the earlier appellate court's conclusion.

Impact

In a 2013 examination of legal transparency, Bianchi noted that although public sentiment generally supports government openness—even in areas involving sensitive law enforcement activities—there exist significant "dark sides of transparency." Additionally, in a 2014 commentary for Al Jazeera, Georgetown assistant professor Abdullah Al-Arian criticized the deployment of informants in Fazaga, emphasizing apprehensions about their involvement in targeting communities following the events of September 11.