Strict Scrutiny - Have They Heard of Frat Houses?

Episode Date: November 11, 2021

Leah talks to Ahilan Arulanantham about the argument in FBI v. Fazaga, the case challenging the government’s surveillance of the Muslim community in Southern California. Follow us on Instagram, Twitter, Threads, and Bluesky

Hello, and welcome to a very special episode of Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm your host today, Leah Littman, and I am delighted, super delighted to be here today with Ahilan Arulantanam, a professor from practice and faculty co-director of the Center for Immigration Law and Policy at UCLA School of Law. Welcome to the show, Ahilan. Thank you so much for having me. Really excited to be here. I have had the great pleasure of working with Ahilan on a previous case where I had the opportunity to moot him and also witness kind of the development of the case as it proceeded. And I can say with no exaggeration that Ahilan is one of the best advocates, both in his ability to kind of capture the humanity of a case, as well as all of the complex legal intricacies that go into Supreme Court cases. So we are just super excited

that he was able to join us today. Thanks. That's very kind of you. I'm not sure that's true, but it's a real compliment coming from you. I really appreciate it. I said it on the podcast, so that necessarily makes it true. So Ahilan recently argued the Supreme Court case we mentioned briefly on our last episode, FBI versus Fasaga, for the plaintiff's respondents in the case. And because the court is hearing so many major important cases this term, we're doing another special separate episode on this case to make sure we have time to cover it. Thank you so much to our GLOW subscribers for making these additional shows possible. If you'd like to sign up to support the podcast, you can do so at glow.fm forward slash strict scrutiny. So let's get started.

We briefly described the facts of the case on the last episode, but maybe you could provide us with a refresher of the FBI operation, Operation Flex, that gave rise to this case? Sure. So the FBI was engaged in just a huge amount of surveillance of Muslim communities, really all throughout the country in the years after 9-11. And to be honest, I'm not sure that's actually ever stopped. A lot of the underlying practices have become very much normalized since 2001. And there's a history of this kind of surveillance going back, at least to like Nation of Islam and Iranian students and, you know, after 1980 and things like that. But it got very, very intense after, in the years after 9-11. You know, this particular episode came, I mean, we learned about it in 2006 and 2007. But really, it was definitely happening in the period even before that. And there was a lot of reason to believe that the

FBI was engaged in a lot of surveillance of the Southern California Muslim communities. It's about 500,000 people back then. I actually haven't seen a recent number. You know, there's a large, very diverse set of communities all throughout the Southern California area. And a lot of people were getting very early morning visits from the FBI, doing interrogations of people in their homes, people being stopped at the airports and interrogated, you know, and coming off the plane, forced the no-fly list, people having bank accounts suspended, all kinds of things. And so we had reason to think that there was really dragnet surveillance happening in the Muslim communities. We did a FOIA request and learned information about it that way, you know, other kinds of information gathering. But, you know, it's really tough to find a lot of details about what's happening about FBI programs that are conducted in the name of national security, right? But it so happens there was

enough concern that there was an outcry and the FBI actually ran a public meeting. They held a town hall meeting and they said very publicly to a bunch of concerned community organizations, one thing we will not do, we will not send informants into mosques. We're not just going to send informants to just go kind of, you know, just generally and do it in the sacred space of the mosque. And that was a lie. You know, and just a few weeks after that, what we learned later was that they sent this particular informant into a mosque posing as a person who had just wanted to convert and go back to his like North African roots or something like that. And he publicly converted in front of like a thousand people at the Islamic

Center of Irvine. It's a huge mosque in Orange County. And after that, he went around something like eight to ten mosques, visiting people all the time. It was his full-time job. He was paid tens of thousands of dollars, more than $100,000 actually, for about 14 months, going around, gathering lots of phone numbers, email addresses. What he said is that the FBI told him just to gather information simply on Muslims, focus of anything on leaders, focus on people who are more devout, and that he recorded everything, hundreds of hours of audio and video recordings.

He had like a little secret video camera in his shirt lapel. He had a recording device in his keys. He did this for a long time, didn't find any violence, didn't find anybody trying to blow up anything. Then he tried to incite it himself. First, people tried to kind of tamp him down. He kept doing it. They got scared. They reported him to the FBI. This is one of the most bizarre facts of this case is the FBI informant is reported to the FBI. Yeah. I mean, you just can't make this stuff up, right? It's such an incredible, you know, and also eventually because he persisted, you know, because to some extent,

this is like how informants are like, you're only useful, right? If you can actually get information. So, you know, if you can't, you kind of have to make it, because otherwise you're not going to get paid anymore. And so then they actually got a restraining order against him at Islamic Center of Irvine. Then he was sort of useless, I think, at that point. The relationship ended. It soured first with the FBI. It ended. There was one case that came out of it, a denaturalization fraud case that the government dismissed on its own motion. In the bail hearing of that, they revealed, made some statements which made clear that he was who, you know, who people suspected him to be. And that's sort of the kind of story of the informant himself. Okay.

So now maybe we can get to the case growing out of this. So who are the plaintiffs that, you know, filed suit challenging this as unlawful surveillance? And what legal claims did they raise in the case? There's three men, all who had pretty extensive interactions with this informant in Southern California. And I should say that there were lots and lots of people who knew him. We tried to get other people to sue, and people were really scared, really scared to sue the FBI. By the time the lawsuit was being developed, it was like 2010-ish. But the three people who sued, Yasser Fezaga was the imam,

so that's the leader of a mosque in Mission Viejo, a little bit south of Irvine. He's also a licensed therapist, very successful, prominent leader. Actually, he'd been flown by the State Department to speak on the U.S.'s behalf about Islam in Europe, actually. So he had had a lot of interaction with this informant, a lot with his congregants and some with him directly. And one of the things that the informant had said was that they had overheard, spied on conversations that were private that he was having in his office with congregants. Another guy is this guy Ali Malik, a second plaintiff,

born and raised Orange County, young Republican surfer. He, in his young sort of, you know, early 20s, he was just post-college had become more devout he was wearing a beard he was trying to get to early morning and late evening prayer and this was suspicious so you know they were like focus on the converts and focus on the people who appear more devout they're coming to it and so monte kind of went on to him that craig monte is the name of the informant you know went on to him and tried to get all this information about him the third one is this uh person yasser abdul rahim he's a egyptian immigrant just finishing grad school living in a house with other immigrants and as he describes it anyway they just played a lot of video games you know

occasionally talk politics there's like nothing particularly interesting about him but because it was a group house and like one was an engineer and one was, I can't remember, one was an accountant and one was something else. They were like, it's a cell, it's a sleeper cell. They all have different skills and that's how it's going to work. And so go look at him. And then when you went into his house. Have they heard of frat houses? Those sound like cells. Exactly. And that's what, and the way he describes it, it's like, we just sat around and we played FIFA all the time. That's what we did, you know? Um, and, um, he's at, funnily enough, he's now, uh, he worked for Nintendo for a long time and now he runs his own like gaming company. That's what I said. He really was, he really was that guy, you know? Um, and then he would lead the

other housemates in prayer when they did it i think because he was like the oldest i think um and so he was he must have been the most important person or whatever so these are the three people who had the courage to sue amongst a set of other people that obviously i can't tell you about and the three of them had very specific interactions with him reasons to believe that conversations of theirs that were recorded including somewhere the informant was not present so there were conversations to which he was not a party, which for your listeners who know the Fourth Amendment law, I know that's kind of obviously an issue. But the underlying big issue is they were just targeted because of their religion. And so that's why that part

of the case was there. Yeah. So there are both unlawful search as well as religious discrimination claims in the case. And this will become important once we discuss kind of what is happening at the Supreme Court. But I did just want to pause for a beat on the harm to the plaintiffs in the case, because the complaint, as well as the briefs in the case, mention the specific harm to the individual plaintiffs who became concerned about their ability to be publicly observant and to engage with members of the Muslim community. But I think this case also raises questions about harms to a broader religious community that are worth thinking about, that is in addition to or above and beyond the harm to individual members who are being or were

being surveilled. There is also a harm to the community itself that is not only the members who were surveilled, but the members of the community who know other members of the community are being targeted because of their religion. And for those who are interested in these kind of group harms or how particular groups or communities become policed, I wanted to do some recommended reading and suggest people check out Monica Bell's work on a theory that she calls legal estrangement, which is how a particular community can feel violated by the state and by policing because other members of their community are over-policed or surveilled, as well as Amna Akbar's work, which is titled National Security's Broken Windows. So I just think this case is a prime example about how those kinds of community harms and group harms come to be.

So one thing that I just think is notable here is when was this case filed? And how long have the plaintiffs been seeking this information about why they were surveilled and seeking to have any surveillance of them destroyed. 2011, that's when the case was filed. And the underlying FOIA litigation started before that. That was before we knew about the informant. But when this community was trying to learn about these things, I don't know, 2006, 2007, because this community meeting I'm talking about was in 2006 that I mentioned at

the outset. This has been going on a long time. And one of the things that was sort of bizarre in the Supreme Court, the government argued, you know, dismissing, I don't want to get too much ahead of ourselves, but the government won in the district court on a motion to dismiss, which is the first thing that happens in a case. And there was a lot of discussions in the Supreme Court about how maybe this is all premature. And it's just sort of funny, right? It's premature. We've been doing this for a decade and we got off the bus too early, apparently. It's very, very strange. But that's also the history of the national security litigation in particular on so many of the human rights abuses that came out of 9-11. So many cases took years and years. I mean, think about

Guantanamo Bay, all these people who haven't been to trial and they've been there for 20 years. And it's very much, I think, the same kind of phenomena in a lot of national security litigation. The NSA mass surveillance programs that Edward Snowden revealed, most of them never got anywhere near the merits, never got even approaching summary judgment. It was all procedural wrangling about standing and state secrets and these other doctrines that prevented anything like accountability in the courts from even getting to this stage. So the case is filed in 2011. I guess you kind of already alluded to this, but what happened in the courts below, like in the district court, courts of appeal, et cetera? So the government immediately moved to dismiss on the ground that it was on state secrets. And I think it's worth noting there was a lot of outcry over the Bush

administration's use of state secrets to shut down cases involving the torture program and the mass wiretapping program I mentioned earlier. And then when Obama came to power in 2008, they did a reform and they said, look, we're not going to start state secrets without having a little internal DOJ working group decide how to approach it. We're not going to do it to cover up abuses. And this was one of the very first assertions that came out after that. And so interestingly, they didn't say the whole case has to be dismissed on safe secrets. But they said all of the religious discrimination claims, that distinction you had drawn earlier, they said all of those have to be dismissed.

But they said the search claims, we're not sure. Maybe they'll have to be dismissed, but we're not going to say that now. The attorney general, attorney general Holder, filed a declaration saying essentially, I mean, between that and the memo, their argument was basically, you know, you say this is because of religion. We assure you we do not surveil people solely because of their religion. That's solely because of their religion. But to say anything else more, to explain what we actually were doing here would require disclosing the reasons that we target certain people, the people who we targeted, and certain aspects of the sources and methods that we use. And that would require the disclosure of secret information. And so therefore, all of the religion claims have to be dismissed,

which is obviously the heart of what, I mean, you know, it's bad if you leave a recording device and walk away. That's a terrible, you know, you shouldn't do that. That violates the Fourth Amendment. But the reason why the community cares about this is not because of this technical, albeit important, privacy problem. It's because they're targeted because of their religion, right? That's what this is about. And so they're just really trying to gut the heart of the case through that. I just want to pause right here because so the government has asked the court to dismiss the religious discrimination claims entirely on the basis of the state secrets privilege. And because I am a glutton for punishment, I recently went back and listened to the oral arguments in Hobby Lobby versus Burwell just to prepare for another religious liberty case that the court is hearing. And I just wanted to, in response to the government's argument that it gets to dismiss

claims of religious discrimination and make them disappear entirely, wanted to play a clip from none other than Samuel Alito in the Hobby Lobby argument. So let's play that clip here. If you say they can't even get their day in court, you're saying something pretty strong. I take it that Sam Alito is going to have a lot of concerns about dismissing religious discrimination claims on the basis of state secrets based on that statement. So anyways, Ahilan, you were saying. So the district court dismissed all the religion claims and actually also almost all the search claims,

left only our claim under 5th Section 1810. Traditionally, it's the government that has to assert the state secrets privilege. They're the ones who hold it. And so this was quite unusual. We looked and looked and couldn't find a single case or maybe one other case that anyone that done anything like this had never been upheld. Um, so then, then, uh, actually both sides appealed. They appealed the fact that we survived our, our, that our, um, FISA claim, that's a claim for damages against the

officers for the privacy violations, essentially, um, for, for any, it has to be warrantless surveillance in order for it to be actionable under FISA Section 1810. They appealed that. We appealed all the rest of it. And the Ninth Circuit said, first of all, it's not right to dismiss claims over which the government has not asserted the privilege. So your search claims can go forward. So that was good. At least there's some part of the case. And as far as I could tell, that was not before the Supreme Court, and they didn't argue it. So I think that the case is going to go forward, at least on those privacy issues we talked about earlier, no matter what else happens. But then on the religion claims, the court said, we think FISA, which is a statute enacted for the purpose of both regulating the government's domestic electronic surveillance on what are called

U.S. persons, which is American citizens and green card holders, and also for providing remedies when there are violations of the law governing electronic surveillance under this very detailed statute that was passed in 1978 in the wake of a lot of abusive domestic surveillance, including by the FBI on Martin Luther King and on Vietnam War protesters and on black churches and the civil rights movement on the Nation of Islam, and then Nixon spying on his political opponents. Then they passed this statute that really reformed this area in a significant way. And the Ninth Circuit said this statute actually displaces the state secrets privilege in cases involving electronic surveillance of Americans on U.S. soil. And what

it requires is that it's very similar to state secrets privilege in a lot of ways, because it still doesn't allow the opposing party really to almost ever see any of the underlying information. So if there are good reasons for what they did here, despite all appearances of what happened in this case, I'm not sure we would ever know about it, even if we won any of the details. But what it says is that under FISA, the actual information, the actual documents that the government says justify its conduct have to be given to the court, ex parte and in camera, and then the court looks at that and decides if the surveillance was lawfully authorized or conducted. And so what they said was, look, there's these other questions about whether the district court should have

actually applied safe seekers privilege here, or was it too early because you know we said we don't care what their evidence says we will prove our case because we know so much about because we have the informants declarations and we have all this other information so you know we had made those kinds of arguments that state seekers privilege doesn't apply here we had said something similar to your quote of or your tape of justice alito earlier we said you can't apply it to constitutional claims to dismiss these claims that might be meritorious when that would have the effect of allowing the government to just blatantly break the law and then hide under the national security

sort of shield of the state secret's privilege. And the Ninth Circuit said, we don't need to decide all that. We think FISA sets forth the procedures here. The district court does get to look at everything without you seeing anything, you, the plaintiff, seeing everything. But the district court should decide whether the government broke the law, not just is

this all secret and therefore your case has to be dismissed. So that was the holding of the decision below. OK, so now the case is at the Supreme Court, and it felt like from argument there were really two issues that were on the justices' minds. One issue is kind of what we've already alluded to, which is whether the state secrets privilege justifies the dismissal of claims rather than prohibiting the introduction of certain evidence. So here, it seemed like at least one justice, Justice Breyer, was very convinced by this amicus brief by Professor

Laura Donahue of Georgetown Law. It got a shout out. So let's play that clip here. I read Professor Donahue's brief from Georgetown. And so that's very much in my mind. I thought it was a good brief. And I think she seems to know what she's talking about. I certainly does. So I'm thinking, look, the thing is that you don't want the case dismissed. Of course. And Totten doesn't apply. And so they shouldn't have had anything to do with that.

They should just look at Reynolds. That's right. Now, that's what seems to be the issue and the problem. So do you really care whether the government's right or wrong on the displacement of the state secrets doctrine by 1806 or whatever. I suppose we said, no, it doesn't. But it doesn't matter that it doesn't. Because of course, as quoting the government, the judges will look at this information. And if the information, it doesn't solve the problem, simply to say, we don't want the information, namely you. Of course you don't. But the

government says, judge, look at this. You will see that we both can't introduce the information because it's just too secret. It's unbelievable harm if we do. And it proves beyond any doubt their case is wrong. The brief argues that the dismissal of claims wasn't part of the common law privilege and has been rarely part of FISA proceedings as well. And then the second question seemed to be about whether the common law privilege of state secrets has been a case on the basis of surveillance information collected, or when it says we would want to defend ourselves on the basis of this information, which we refuse to introduce. And then second, whether those statutory procedures or provisions supersede or displace the rules regarding the common law privilege. So both of

those questions seem to be, you know, on the court's mind. Although some of the justices like weren't sure the first question was really part of the case. I don't see how it couldn't be part of the case, given that that was the district court's disposition of the claim. And the Ninth Circuit, you know, ostensibly said, well, you can't dismiss a claim, at least where the government didn't ask for it on the basis of the privilege. So that's definitely part of both the district court's decision and the court of appeals decision. Like you can slightly alter the remand order to the district court, right, if you think that is the right way to resolve the case. But like that, that's definitely part of the district court's judgment.

I agree with everything you've said, Justice Lippman, I have to say. You say it on the podcast, that makes it true. But I have to tell you, I was scratching my head over that, what you just said, it was the disposition of the court below. So how can that not be in the question presented? And also the way the question was written, they granted the government's question, is does FISA displace the state secret's privilege? Or, you know, then their account of what the Ninth Circuit, you know, sort of wanted.

So when you say displace the state secret's privilege, you have to, well, what does the state's secret privilege do? What does it do? And if you're saying it displaces the state's secret privilege and therefore they should have affirmed the decision, the district court decision, well, then you're saying that dismissal is okay, right? So yeah, I find that odd. And there's also this procedural point.

We said in the brief in opposition that we were going to argue that there is no dismissal of the state's secrets privilege because there were all these, I told you there's all these torture cases and NSA cases. They were close. Some of them, the on-bank Ninth Circuit decision upholding state secrets dismissal of the torture claim was six to five on-bank. This case, Muhammad v. Jefferson, a data plan. So there were close cases and then the court had never taken any of them. But after that, the court took this other case, Muhammad v. Jefferson, a data plan. So there were close cases, and then the court had never taken any of them. But after that, the court took this other case, General Dynamics, which was a defense contractor case.

But in it, because the case was covered in state secrets, the court said very clearly there are two different doctrines that have kind of gone under the name state secrets doctrine. It's a unanimous Justice Scalia opinion. And one of them is a privilege, an evidentiary privilege. That's why you say state secrets privilege. You know, what happens when you win an evidentiary privilege? The evidence is excluded and the case goes on. And as though the witness has died or, you know, all those sort of analogies. And so there's another doctrine, which is when you have contracts to spy or other secret contracts that someone has made with the government, those contracts may not be enforceable in court. Because when you do that, you assume the risk that you're operating in secret. And one thing that means is you're not

going to be able to sue if one side to a secret agreement breaks the rules. And what the court said was these are two different doctrines. The evidentiary privilege does not apply here because it was a defense contractor to make some very secret kind of military equipment. And so the second set of rules applies. That case seemed to cast a lot of doubt on these prior cases and the torture context and the wiretapping context that had suggested that dismissal was available. And so, you know, the other thing we said was, look, your own case, you said it. So we're making this argument, which seems very clearly to follow from your most recent state secrets case. But yes, the government had said it wasn't in the question. And you had said earlier, you know, there's a lot

of discussion of history from the super brief that Professor Donahue, and Professor Donahue happens to be a historian, and her other area of interest is national security. And she's actually one of the appointed amicus to the Foreign Intelligence Surveillance Court. So it's kind of a remarkable marrying of interests that made her sort of a perfect person to write this brief because she just knows so much in both the different areas. But I found it slightly surreal that we were focused so much on one hand on the history and all of this doctrine from a lot of it's from early England, you know, early 1800s England, because very little U.S. state secrets doctrine in the common law. And then on the other hand, what does the word use mean? What does the word whenever mean? What is the word otherwise used? It's different from

use. And to me, the basic problem with their position is that if they are right, then the government has a veto power. They can say national security and your constitutional rights disappear. And all of these remedies that Congress created to stop all these abuses actually are meaningless because the government can always just circumvent them by acting in the name of national security, which of course Nixon was doing. and the FBI was doing when they surveilled Martin Luther King. They said it was for national security, right? But I also do think it came through, and you've also alluded to this today, which is the case does raise broader questions about how do you hold the government accountable to the law and how do you enforce the law in a world in which,

you know, the government has this kind of state secrets privilege in its back pocket? Because in a lot of FISA or foreign intelligence surveillance court surveillance cases, people won't know they were surveilled. And so therefore, it's really hard to challenge whether the surveillance procedures are lawful if you don't actually know whether you're being surveilled. And there are also a variety of procedural doctrines that make it hard to challenge the surveillance program if you don't actually know whether you're being surveilled. So there was an attempt to challenge a separate government surveillance program in Clapper v. Amnesty International that the court dismissed because they said, no, you haven't established that it's sufficiently likely that your communications are going to be intercepted. So if not in this case, which is a rare case where people actually know they were being surveilled, how are you going to hold the government accountable to the procedures it

is supposed to abide by? Yeah, exactly. And I think it's, for me, very troubling that even though the NSA abuses, they would never have come to light and nothing would have changed if not for Edward Snowden, precisely because for the holding in Clapper that you just described was, unless you already know that you are the victim of a secret program, even though it's highly likely, and it turned out to be true, that of course they were, unless you already know it. And so the only way for these cases to even get off the ground is with whistleblowing. In our case, it's an unusual form of it, but I think it is a form of whistleblowing. It's an informant who, you know, perhaps for his own reasons, but has come forward and said, this is what was happening and this is what the FBI was doing. But of course, all the things are equally illegal, even if there is no whistleblower. The same things may have been happening in Michigan or in Dallas or in other places, but the Bay Area, they were happening in New York because there was that information came to light as well. But you can't sue unless you, you know, this sort of fortuitous accidental thing happens. And that's really a fundamental defect in the system, in my view. So we are probably running short of our window. Is there

anything else you wanted to cover? I always think it's important for people to, especially if you're not in California, to understand that this set of issues was a really big deal at the time. There's actually a great This American Life episode called The Convert, which is about this case. It was done long before the Supreme Court litigation. But people in Southern California, in the Muslim communities, still remember this. It was a big deal when they realized that the FBI was lying to them. A lot of people, you know, I sort of feel like, look, a lot of government security, they often don't tell the truth. That's the history of this country and what happens. But that's not the way a lot of people see it.

And it caused a lot of hurt. It really did. And that's why I think it is really important that there be some way for the case to get through and have their day in court. I'm not sure if we're going to get there or not. Obviously, there's no way to know. But yeah, it was an issue that was of tremendous personal importance to a lot of people in the community, not just these three men either, a whole lot of other people too. Yeah.

Well, I'm told this is a court that really cares about religious liberty. So I'm sure they will not require the outright dismissal of a religious discrimination claim. And I will leave it there. Thank you so much, Ahilan, for joining us. It was a real pleasure.

And thank you for your work on this case. Thank you very much for having me. I've really, really enjoyed it. Thank you to our producer, Melody Rowell. Thanks to Eddie Cooper for making our music. And thanks to all of you for listening. Thank you.