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 @GeorgWebb For the primary probably. His negatives are off the charts, though. How much of that was his own doing? @realDonaldTrump
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emptywheel .@kurtopsahl Maybe he should have just titled it, "The Fourth Amendment: Heads I win, tails you lose"?
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emptywheel @kurtopsahl Right. Even just releasing correlations memo would change mosaic analysis tremendously. But Litt won't let that one out...
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emptywheel @GeorgWebb It didn't take him out tho. It may have damaged him for General, but I'm not sure that's where most damage came @realDonaldTrump
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emptywheel @kurtopsahl All while limiting himself to the stuff he himself has chosen to make public, which hides much of the impact. Nifty!
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emptywheel "When someone who controlled the FOIA disclosures writes a law review article on what got released," by Bob Litt https://t.co/YeeyAZE6of
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emptywheel @SuperiorWang Absolutely, but Bernie's fundraising has been unprecedented. @JC_Christian
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bmaz But you got in the room Scafe. So much admiration on this end. #FoundingScafes https://t.co/4iL252jyjm
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emptywheel Q: Would FB be obliged to delay reporting of WhatsApp requests 2 years? https://t.co/KmI0hHUhWB
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emptywheel FB FISA Content: 2013, 1H, 2H: 5000-5499 2014, 1H, 2H: 7000-7499 2015, 1H: 13500-13999 Bigger spike than Apple. https://t.co/OSHx19ApbW
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emptywheel @Matt_Cagle What percent of those were Turkey, though? @zeynep
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emptywheel RT @coracurrier: And this description, of what international forces are doing in Afghanistan https://t.co/pVyyVz5wz6 https://t.co/syArYQB25H
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