Even Liars Get To Invoke State Secrets

As the LAT first reported, Judge Cormac Carney has dismissed a suit, Fazaga v. FBI, brought by Southern California Muslims against the FBI for illegal surveillance. Carney actually made two rulings, one dismissing most of the suit on state secrets grounds and one dismissing part of the suit against the government–but not individual FBI officers–on FISA grounds.

The rulings are interesting for four reasons:

  • Carney has basically accepted the government’s claims in a case that is closely related to one where–three years ago–he called out the government for lying to him personally
  • Carney overstates the degree to which the Administration appears to be adhering to its own state secrets policy
  • The case is an interesting next step in FISA litigation
  • Carney suggests the FBI now investigates people for radicalization

Liars get to invoke state secrets

Three years ago, Carney caught the government lying to him about what documents it had collected on Southern Californian Muslims in this and related investigations. In an unclassified version of his ruling released last year, he revealed part of the government’s breathtaking claim.

The Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it.

Yet in finding the government’s state secrets invocation here, he is effectively accepting the government’s word–which in some way claims to have a real predicate for its investigation into Southern Californian mosques–over the word of their former informant, Craig Monteilh, who says he was instructed to collect information indiscriminately because “everybody knows somebody” who knows someone in the Taliban, Hamas, or Hezbollah.

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Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.