Federal court relies on state secrets doctrine to dismiss several claims in secret surveillance suit

A federal court dismissed nearly all of the claims in a lawsuit challenging the constitutionality of the FBI spying on Muslim Americans, ruling that the government could invoke the “state secrets” privilege to avoid almost all litigation.

The three Southern California residents first sued the United States, the FBI and seven agents in 2011, alleging that the government “conducted an indiscriminate ‘dragnet’ investigation” based on their religion, violating their constitutional and civil rights under the First, Fourth and Fifth Amendments, as well as federal statutes. But the U.S. District Court in Santa Ana threw out most of the case on Tuesday, finding that addressing the claims in open court would pose too much of a threat to national security.

“The Court is convinced that the subject matter of this action, Operation Flex, involves intelligence that, if disclosed, would significantly compromise national security,” wrote Judge Cormac J. Carney in the court’s opinion. “The Court is further convinced that litigation of this action would certainly require, or at the very least, greatly risk disclosure of secret information, such that dismissal at this stage of the proceeding is required.”

The so-called state secrets doctrine “bars litigation of an action entirely or excludes certain evidence because the case or evidence risks disclosure of ‘state secrets’” according to Carney’s opinion.

The court granted the broad privilege to the government after U.S. Attorney General Eric Holder submitted a public declaration asserting that the disclosure in open court of any information related to the the alleged spying could “be reasonably expected to cause significant harm to national security.” He and the FBI also opposed identifying the individuals targeted in the surveillance.

“Under today’s ruling dozens of law-abiding Muslim Americans in Southern California will never know if the government violated their constitutional rights," said Ahilan Arulanantham, deputy legal director for the American Civil Liberties Union of Southern California, which represented the plaintiffs, in a statement. "The notion that our basic safety requires relinquishing our most cherished liberties is as inconsistent with the Constitution as it is frightening.”

The plaintiffs also alleged that the FBI’s investigations violated the Foreign Intelligence Surveillance Act (FISA), a federal law which governs physical and electronic surveillance. In a separate order also issued on Tuesday, the court dismissed those allegations against the FBI, ruling that as a federal agency it enjoyed qualified immunity under the statute. But Carney’s order noted that that seven FBI agents involved in the case are not protected by FISA, allowing the lawsuit’s claims against those individuals to stand.

“We are pleased that the Court allowed our claims to proceed under [FISA], but deeply disappointed that the Court has permitted the United States government to escape responsibility for its actions,” said Arulanantham. "Every American should be deeply troubled when the government can win dismissal of a case involving the most basic constitutional rights by claiming that it is acting, in secret, in the interests of national security.”

In reaching its decision, the court indicated that it attempted to find a compromise between constitutional guarantees and national security but discovered that "the proper application of the state secrets privilege may unfortunately mean the sacrifice of individual liberties.”

The plaintiffs argued that they did not need privileged information to prove their claims of discrimination because an FBI civilian-informant turned against the agency and publicly disclosed that he was paid to spy on a Muslim community in California. But the court found that in order to defend itself against the allegations, the government would need to reveal information that could jeopardize national security.

“Ordinarily, a successful claim of the privilege may simply entail excluding or walling off secret evidence,” the court conceded. “But in some instances, as here, application of the privilege may require dismissal of the case.”

The U.S. Supreme Court wrote in a 1953 case, United States v. Reynolds, that the state secrets privilege applies when “there is a reasonable danger that compulsion of … evidence will expose military matters which, in the interest of national security, should not be divulged.”

Though the privilege is intended to be seldom invoked, Holder announced new guidelines for the U.S. Department of Justice in 2009 that allow for the doctrine to be applied in court to shield the disclosure of sensitive information – and, in some instances such as this lawsuit, to seek dismissal of entire cases – in the name of national security.