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 @SarahKnuckey So much for CIA's vaunted relative accuracy over DOD.
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emptywheel @ovelarsen I'm of the opinion that as soon as we think of these entities as distinct we stop seeing the big picture. @trevortimm
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JimWhiteGNV RT @MasaccioFDL: What do people in Kansas City think about guns? Could they think they have the right not to be shot by crazies? http://t.c…
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bmaz @BradMossEsq Also could've used existing UCMJ military system, which also would've been better. But both those options had too much fairness
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bmaz @JONF34 @AppellateDaily We did by electing idiots!
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bmaz RT @J_T_Horowitz: .@SarahKnuckey Lots 2 speculate about Maybe deemed proportionate But that wouldn't follow #Obama rules or explain Y not w…
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bmaz @JONF34 @AppellateDaily Yes, it has actually been the law for a while. Insane, but there it is.
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bmaz @walterwkatz @radleybalko And unfortunately, thats exactly how exceptions for, and expansions of, general govt power trickle down to street
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bmaz Chief Judge Garland+DC Cir lay down some hurt onDOJ for handling of Slatten Blackwater prosecution http://t.co/jHuoZvyssG h/t @MikeScarcella
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bmaz @evanperez @fpleitgenCNN @Redskins If true to form, the pieces are quite expensive and don't really fit together.
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