Fazaga v. FBI

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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Emptywheel Twitterverse
emptywheel @ericgeller Probably not. She's got a very weird double standard on things, such as w/her concern abt domestic drone privacy.
emptywheel @Vyan1 Did not know that detail! Did you write that up?
emptywheel @ericgeller Right. If, say, Tammy Baldwin chaired SJC Jim Comey might have to explain himself. But not under this Congress.
emptywheel @Vyan1 Whereas for Muslims looking for such a network is presumed.
emptywheel @Vyan1 Right. I think what I'm remembering is they didn't look backwards towards her and others until years afterwards.
emptywheel @Vyan1 Am I wrong that they didn't go looking in Roeder's case?
emptywheel @ericgeller They do focus on right-wing extremists, some. Just don't do same network analysis all the time, don't have same pull.
emptywheel Frazier Glenn Miller was TREATED as network for Kevin Harpham, but not surveilled. https://t.co/Y9q3P1pzkC https://t.co/EvONTxzni7
emptywheel Scott Roeder was actually part of a network. But they didn't think to look for it until years after Tiller killed. https://t.co/WHNObFRIRn
emptywheel @zackwhittaker I suspect there are some targeting considerations that this attack might refocus.
emptywheel RT @DanaHoule: BTW, completely possible this shooter ends up charged with a crime that carries the death penalty. Which itself would be an …
emptywheel @zackwhittaker FWIW, it wouldn't be asked to, but FBI has its own very extensive surveillance that would which we could raise real Qs abt.
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