On Tuesday, August 14, a federal judge issued a disturbing ruling allowing the Federal Bureau of Investigation (FBI) to evade public accountability for infiltrating faith institutions, monitoring law-abiding people, recording sexual encounters, and then lying about all of it. Carney’s decision erodes democracy in two dimensions at once, enabling ongoing constitutional violations by the executive branch while, at the same time, eroding judicial independence.
The ruling is especially surprising given the judge’s previous criticism of the FBI for lying to him in court.
Fazaga v. FBI addressed claims by a series of southern Californians challenging a long running secret infiltration of their faith institutions by an ex-convict and undercover FBI informant named Craig Monteilh. After being promised a six figure payment to infiltrate mosques across southern California—and even to record sexual encounters with women in those communities to enable subsequent blackmail—Monteilh blew a whistle and joined a case brought by the Council on American-Islamic Relations; Hadsell, Stormer, Richardson & Renick LLP; and the ACLU of Southern California.
US District Judge Cormac J. Carney of the Southern District of California dismissed much of the case this week (leaving intact claims against individual FBI officers under the Foreign Intelligence Surveillance Act), holding that the state secrets privilege and sovereign immunity essentially preclude the suit from moving forward against the government.
News outlets such as The Los Angeles Times have featured analysis from ACLU attorney Ahilan Arulanantham, who correctly noted that Judge Carney’s ruling is “contrary to the basic notion that the judiciary determines what the law is and holds the government to it,” and that the ruling essentially “exempt[s] huge swaths of government activity [from] judicial oversight.”
Missing from most reports, however, are a recognition of the multiple ways in which Carney’s decision erodes democracy.
First, by invoking the state secrets privilege, the decision extends the judiciary’s capitulation to executive lawlessness across the Bush & Obama administrations. Since initially emerging as a narrow evidentiary doctrine (in a 1953 case that ultimately proved to be part of a Pentagon coverup), federal courts have recently accepted the privilege as a wholesale immunity doctrine, a “get out of jail free” card for executive abuses of various kinds.
Over the past decade, federal judges have turned a blind eye to corporate complicity in human rights abuses, the National Security Agency’s dragnet warrantless wiretapping scheme that captures and records essentially all email exchanges and phone calls even absent any individual suspicion, and now the FBI’s resurrection of COINTELPRO tactics to vilify vulnerable minority groups. This refusal to even consider claims, simply because they are inconvenient for our government, stands in sharp contrast to the judicial independence that Alexander Hamilton described as “an essential safeguard” in the Federalist Papers.
The state secrets privilege has been making a mockery of democracy for over half a century. But some observers had hoped that Judge Carney would see through the Bureau’s recurring lies to hold it accountable in this case, since he had already criticized the FBI for lying to him in a prior case involving similar facts. Describing that case, also involving FBI surveillance of southern California Muslims, as “the most significant case in my career,” Judge Carney said he found it “startling and surprising that” federal officials claimed “that they can deceive the American people. Is it not that when democracies perish, when the government starts lying?” His choice to help cover up the FBI's lies in the Fazaga case threatens the legitimacy of the judiciary as an independent institution.
Second, Judge Carney’s decision reflects the latest step in a disturbing pattern of acquiescence to FBI abuses, in particular. In 2010, BORDC called attention to admissions of wrongdoing by senior FBI officials for which no one has ever been held accountable, in response to congressional inquiries that the FBI leadership answered inaccurately on the record. Later, dozens of civil rights organizations objected to Congress’ rubber-stamp entrenchment of the FBI leadership beyond its statutory term for the first time since J. Edgar Hoover’s corrupt reign of terror.
While the COINTELPRO era shook Washington to its foundations, the replication of its abuses under the contemporary war on terror has drawn little criticism from within the institutional establishment. In the 1970s, the Senate Intelligence Committee first emerged from a two year investigation that compiled tens of thousands of pages of documents revealing what the US Senate ultimately described as “a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights of speech and association.”
Today, the Senate Intelligence Committee sits on its hands, failing to check or balance executive abuses while the FBI raids activists targeted for their speech, abuses the rights of minorities, and creates a futuristic biometric tracking plan to impose a national ID system on all Americans using our bodies instead of cards.
The FBI is long overdue for a serious investigation, of the sort that in the 1970s discovered its systematic crimes against the American people. Nor should such an investigation inspire political conflict. After all, as dozens of groups united to argue last fall, “Constitutional rights are not partisan issues. Indeed, administrations from both major parties, and congressional leaders from both sides of the partisan aisle, have repeatedly entrenched executive power despite a rising tide of violations by our nation’s intelligence agencies. Even FBI veterans have called for long overdue oversight….”
In addition to finally taking its oversight responsibilities seriously, Congress should also enact the State Secrets Protection Act to give judges a statutory hook to re-assert their independence. Given our contemporary Congress’ repeated subservience to executive abuses, however—visible in its recurring reauthorization of the PATRIOT Act, rubber-stamping the NSA’s Soviet surveillance powers, and approving the indefinite domestic military detention powers of the NDAA—waiting for Congress may be more futile than waiting for Godot.
Meanwhile, courts need to start taking the state secrets privilege with the grain of salt that any self-serving claim deserves. Rather than risking their very legitimacy by standing down in the face of documented, systemic, and ongoing abuses of the rights of law-abiding Americans, our federal judges must rediscover the independence that once made them guardians of the Constitution.