tv Justices Hear Case on FBI Surveillance of California Muslim Community CSPAN November 9, 2021 3:45am-5:54am EST
on a community in orange county, southern cal of you. >> the orders of the court have been duly entered and certified with the clerk. we will hear argument in case 2088, the federal bureau of investigations versus fazaga. >> the states secret privilege is firmly grounded in the constitution and the common law and is critical to safeguarding the national security. the ninth circuit did not disagree with the district court's conclusion that the information concerning that foreign intelligence investigation at issue here falls within that privilege.
the ninth circuit instead held that section section 1806(f) of pfizer displaces the state secrets privilege and requires this state to adjudicate the merits of plaintiffs challenged using the very information that is covered by the privilege. that novel interpretation cannot be squared with the text, context, or purpose of section 1806(f). that section's purpose is to provide a special mechanism for the suppression of evidence when the government seeks to use it against an aggrieved person in a judicial proceeding or other proceeding. the ninth circuit's first rationale was that the government uses information against a party when it invokes the state secrets privilege, but the government invokes the privilege to prevent the use of information, not to facilitate issues. indeed, in this case, the government argued, and the district court agreed, because the information concerning the reasons, the subjects, sources, and methods of this form -- foreign intelligence
investigation was so central to the case, that the person in the -- first amendment claim had to be dismissed. the ninth circuit's other rationale was equally erroneous. it rule of the plaintiffs injunction requiring the fbi to destroy or return the information comes within section 1806(f)'s reference to a motion or request to discover or obtain surveillance application orders and related materials. but that clause governs discovery in aid of a suppression motion. it likewise does not displace the privilege. at the very least, given the constitutional and roots of the state secrets privilege section 1806 cannot be read to reflect congressional intent that would be required to abrogate the privilege. >> mr. kneedler, a few times in your opening remarks, you referred to this as a common-law privilege. is that your argument, that it
is based in common-law, rather than adheres in executive power. >> we think it is strongly rooted in executive power. it is also firmly rooted in the common law. and the reflection of it being a part of the executive power goes all the way back to the founding. many of those earlier disputes were vis-a-vis congress, not the courts. the basic point of the need for the executive to protect information pertaining to the nation's security as being a part of the presidential prerogative and the executive branch necessity goes all the way back to the founding. but it's also recognized for very good reasons, the same reasons actually, as a matter under federal common law.
>> one final question. the respondent seems to make quite a bit of the two cases, kotten and reynolds, argues that these two have separate doctrines with respect to executive powers, or to state secrets. do you think there are two separate doctrines, or is it just one doctrine? mr. kneedler: we think it is just one doctrine. the question of the privilege in the first instance goes to the exclusion of the evidence from the proceeding, but then the next question is, what happens if the evidence is excluded? in that situation, where the evidence is so central, at least to the case, or its adjudication would risk disclosing information at the core of the case, the case should be dismissed. in fact, this court's decision in tenant vs. doe rejected the
claim, in contention that the doctrine of cotton was simply a contract doctrine. the court said kotten was not so limited. the court, quoting the hazard from kotten, said public policy for bids the maintenance of any suit in a court of justice. the trial would inevitably lead to the disclosure of matters which the law itself regards as confidential. in reynolds, it spells, while the court was dealing with a privilege, it pointed out that kotten was a particularly clear case, and it was not necessary to even get into the question of evidence because the case concerned the existence of a spy agreement that was central to the case. i think the way the court referred to kotten indicates that was an easy case that could be dismissed in the face of the complaint because the face of the complaint was alleging the existence of a secret item that was protected by the national security. but if you get further along, maybe the face of the complaint
doesn't say that, but as the government's declaration in this case demonstrated, the adjudication of the case, if it went forward, but concerned the cases and methods etc. of foreign intelligence investigation, such that plaintiffs' first amendment challenge could not be properly adjudicated. >> let me finish. i am a little confused. i thought the ninth circuit here basically only displaced the state secrets privilege with respect to the ability of the judge to determine whether, after reviewing the information that was necessary, that it
thought necessary, that it then should determine whether the seizure was lawful or unlawful under 1806. i thought there were separate writings basically saying that in fact, that point, it found the seizure unlawful, that that it would consider disclosure only. i don't think it said it would disclose if the seizure was lawful. it said it would disclose only if it was unlawful. i don't know where, in any of our jurisprudence, we have ever suggested that an in-camera review by a judge threatens national security. mr. kneedler: our submission is not when the government invokes the state secrets privilege that a court is altogether barred from looking at the in congress submission by the government to
explain why the information is privileged. the ninth circuit went beyond that. it relied on section 1806(f), to adjudicate the merits. it said the court should consider all of the challenges that the plaintiffs are bringing. >> i'm sorry, 1806 only permits on its terms a disclosure, if the information is seized unlawfully. i don't know where you would get that the court was trying to do anything else but determined that. i think there were some of the majority who wrote separately and said if the court chooses to to disclose than, -- then, -- but that's a big if, assuming the seizure was unlawful. the bottom line is, you seem to
be rendering 1810 a nullity, by basically saying, if i do not invoke 1806 by moving to suppress evidence, then -- and i tell you it is a state secret, even if i season -- sees -- seize these materials unlawfully, the petitioners have no claim under 1810. is that what you are saying? mr. kneedler: ants cannot be the basis for an injunction. rajesh: -- >> that is assuming that we read 1806 the way that you do. 1810 lets a person who has been surveilled unlawfully sue for actual damages, liquidated
damages, punitive damages, and reasonable attorney fees. so assume, as i must, on the face of the complaint, that the plaintiffs might be able to prove without your information that they have standing because they have been unlawfully surveilled, and they are suing for a violation of 1810. you are claiming that they are not entitled to have the judge determine whether they have been surveilled unlawfully or not. mr. kneedler: there are two points about section 1806(f). one is that it is simply a suppression mechanism, not a -- suppression mechanism, -- >> you said if we just say that
1806 doesn't displace state secrets? why would we even reach that question? mr. kneedler: because there is a threshold question. section 1806(f) is triggered by the government's intention or obvious purpose -- >> no, sir. you say the state secrets are not displaced by section 1806(f) . if we agree with that, why would we reach that very naughty question, which in your brief you ask us not to reach, of whether or not a claim under 1810 would permit the judge to look at the materials and say a seizure is unlawful or not. mr. kneedler: what we have suggested is not before the court, is the question of dismissal as a remedy as a
consequence of invocation of the state secrets privilege. the other argument we are making go to the interpretation of 1806 itself in terms of when it can be invoked. in our view, it can be invoked only when the government affirmatively reviews the information against an aggrieved party. and the implication -- >> how is that consistent -- i think i understand the argument you have made in this respect in your brief, but i want to hear it concisely. how is that consistent with the language that any aggrieved person can use the statute to discover or obtain applications or orders or other materials relating to the electronic surveillance? that sounds like the other aggrieved person is using 1806 (f). >> but we submit in response, just like in an ordinary suppression situation, and this is a statutory codification of what is at bottom a regular suppression motion or procedure. when the government intends to introduce evidence obtained or
derived from foreign intelligence surveillance, then the aggrieved party against whom the evidence would be used has an opportunity, just as a normal suppression motion, to challenge the validity of the surveillance or other way in which the government obtained the evidence. it has to be triggered first by the government's use of the information. when you read all the preceding sections in f together, we think that is very clear. subsection c requires the government to notify an aggrieved party when it intends to use information against him in a proceeding. e) provides for a motion to suppress that, and f) is about
how a suppression procedure would operate, whether it is the result of a governments notification or motion under e, or as a safeguard to make sure this procedure is exclusive. any other way in which an aggrieved party may seek to challenge the government's use of the information, and your reference to the language in f, refers to a motion or request made by an aggrieved party to discover or obtain applications or orders or other materials relating to the surveillance. it's classic suppression. we want to see what went into the warrant, what went into the application. so it's about suppression, not discovery. >> why is it about both? a significant part of it is obviously about suppression but there are also these references to discovery. why shouldn't we understand this provision as doing both ends, -- things, codifying a
suppression procedure, and also codifying a discovery procedure? because it may be that plaintiffs in a case like this one look to discover very sensitive materials, and congress wanted a procedure in place to deal with discovery requests. mr. kneedler: in a civil case, if there is a discovery request, and the information is covered by the privilege, the mechanism for dealing with that is the assertion of the state secrets privilege. there is no automatic right in a plaintiff to get discovery from the government vis-a-vis a privilege, but where the government actually comes forward and says we want to use this information against you -- >> you are just excising words from the statute. the statute is about discovering, obtaining, or suppressing evidence. that is the f language, right? suppressing, obtaining or discovering. it just seems as though congress wanted to do two things here. we realize there are these very sensitive materials. maybe the government will want to use them, and the person will
say oh, that is illegal, the government cannot use them. that is one set of circumstances. the other set of circumstances is maybe a plaintiff wants access to those materials, and the government wants to say you know, -- no, you cannot have them. that is another way in which the statute says here are the procedures you use when that occurs. mr. kneedler: i think that that phrasing has to be looked at in the context of all the subsections dealing with the government's intent to use. indeed, section 1806 as a whole is titled "use of information." subsection a describes the uses to which the government may put the evidence. it can only use it in connection with minimization procedures. section b says it cannot be turned over for law-enforcement purposes without a reservation by the attorney general. c through g deals with the government's use of information against a party in a narrow situation in a legal proceeding.
>> mr. kneedler, i'm curious, in the list you gave the chief justice about the various subsections you think support your position, you didn't list a, which talks about preserving privileges that otherwise exist. i'm curious why the government did not invoke a. there must be a reason. mr. kneedler: i think a does cover that. >> i just wondered if you had thought about it. mr. kneedler: i think it also covers attorney-client privilege. >> i just wondered if you had a thought about it. >> i think that is a further confirmation. >> ok, i got it. otherwise, help me out with that. if the language is entered into evidence, disclosed, or otherwise used. why doesn't "otherwise used" cover this circumstance?
mr. kneedler: again, i am not sure if you are looking at subsection c or d. but subsection c says whenever the government intends to enter into evidence or otherwise use or disclose. >> it has to be circumstance. it seems to me where the government is not putting evidence on, and is not disclosing it to the other side, but is making use of the evidence in some other fashion, and here i think there is a pretty good argument on the other side that the government is using it as a means to dismiss the case without disclosing it. and it is the existence of this secret evidence that will neither be put in evidence nor disclosed that is the basis for the dismissal under reynolds in the government's view. why doesn't that fit perfectly? mr. kneedler: the language "entered into evidence or -- comprehensive description of
anyway in which the evidence -- >> but it isn't because you have "otherwise might be used." by definition, congress says they are. there is another way to use this evidence. it doesn't disclose its -- involve its disclosure. mr. kneedler: enter into evidence means a judicial proceeding. i think it means formal proceeding here, don't you? i understood you to be looking for an explanation for the word use. when you don't have a formal proceeding where you have rules of evidence introducing something into evidence, something received into evidence, but an informal adjudication before an agency -- >> mr. kneedler, we are talking about otherwise used in court.
what you will why couldn't it be again that otherwise used might be when the government sites secret evidence it is not willing to disclose or put into evidence as a basis for dismissal of the lawsuit? that is using the evidence as an offensive weapon. >> we think when the government invokes the state secrets privilege it is invoking it to keep it out of the case. what the language is, to use against the person in the proceeding, but assertion of the state secret privilege successfully keeps it out. >> can i follow-up on justice gorsuch's question? maybe i am misunderstanding your position to be that in 1806 c, intends to enter into evidence, or otherwise use or disclose and it is not simply in a trial but otherwise use or disclose at any trial, hearing, proceeding in or in front of a court, office, regulatory body, or other authority of the united states, i understood you to be saying, in all of those situations you may not be introducing into
evidence, but you might be using the evidence, bringing it before a regulatory body in some way that is not a proceeding? >> that is precisely our explanation. one other clue to this is the very same phrase "intends to enter into evidence or otherwise use or disclose in c" is used in e, which says any person against whom evidence obtained will be introduced or otherwise used or disclosed, may file a motion to suppress. i think that links c's language about use to the motion to suppress, which is the way, again, e uses the very same language. f is about the procedures for suppression. g then says, if the government, if the district court determines surveillance was not lawful, it shall come in accordance with
law, suppress the evidence, which was unlawfully obtained or otherwise grant the motion. otherwise grant the motion was and intended to leave open the question of whether this court's decision would apply under fisa. it all hangs together. this would be a surprising way in which the government -- excuse me, in which the court, congress would abrogate the state secret privilege and the sentence about discovery in the middle of five subsections of this statute dealing pretty clearly with the suppression of evidence. even when you look at 1806(f) itself, it talks about discover or obtain applications or orders or other materials relating to the electronic surveillance. it is not talking about evidence of the plaintiffs claim generally. it is focused specifically on the things dealing with the electronic surveillance.
>> it seems to me, mr. kneedler, you have at least one textual argument regarding the language in subsection f, and that is whether the prayer for relief constitutes a motion or request. putting that aside, do you have any other arguments about the literal meaning of the language in subsection f on which the respondents rely? if you don't, what are the structural features that you rely on? i understand your argument to be based mostly on structure and not on the literal language of subsection f. two parts to that. any other strictly textual arguments, and if not, which structural arguments are you relying on, or which anomalies would result if their interpretation were adopted? >> i think very important
textual arguments in the pertinent phrase which has two parts. it says discover or obtain. discover could again tie into formal court proceedings where you might file a discovery motion, but outside of formal proceedings, if you want to obtain the evidence effectively in the same way you would through discovery -- >> the point is, literally, they want to obtain this information, do they not? >> what the prayer for relief seeks is actually expungement of it, not to receive it. >> i thought they made plain that they would be happy to get the documents back, which would be to obtain them. no? >> yes, but that does not, i think, tie into what their complaint was. the more fundamental point is, 1810 does not provide for injunctive actions against the united states. the privacy act does not provide for expungement.
the structural point we think is also important. as i mentioned here, the entirety of 1806 is addressed to the government's use of information derived from foreign intelligence surveillance, that is the title. a talks about use with minimization. b talks about when it will be furnished for law enforcement purposes. all of these other provisions that we are discussing go to when the government tries to use it -- >> i got that point, they are taking some language out of this and interpreting it to mean something that is quite different from most of what is addressed in 1806. i have got that. any other structural features that you rely on? >> the language in c and e that i referred to, which ties "otherwise used" to
"supression," f being a method of suppression, and on g which talks about suppress the evidence or otherwise grant the motion. it is the same motion to exclude the evidence from the proceeding. the court can either suppress it, or congress hoped, do something else besides turning over all the information to the defendant as part of the suppression. but g talks about suppression of evidence, not obtaining it. >> thank you, mr. kneedler. justice thomas, anything further? >> mr. kneedler, you were in the process when you were discussing subsection c, 1806c. the phrase "against an aggrieved
person." you were about to tell us what you thought of that when you got distracted. >> i think that is very important. it shows it has to be triggered by something the government is doing before you even get into this procedure. that is why the word "suppress" is very important. if the government intends to use the information against somebody, you can move to suppress it. or if in a more informal proceeding, you don't consider it, or whatever its equivalent is. maybe some civil proceedings where the evidence -- maybe there is an argument that it should not be suppressed. but again, 1978, it was all directed toward suppression where the government intends to use information against a person in the proceeding, whereas the state secrets privilege keeps it out of the proceeding. >> justice breyer? >> assume you are right, that
this particular statute does not displace the state secret doctrine. still, there are many situations, different kinds in which it may arise. this is an unusual one. a plaintiff sues government officials and says you have unlawfully been wiretapping or surveying, whatever. ok? the government goes back and says, judge, we have a good reason for doing that wiretapping. we don't want to tell people what it is. doesn't the judge, shouldn't he look to see if they are right? one, they don't. two, maybe it isn't that important. three, maybe how they got it legally or illegally, has , something to do with it. maybe there are different ways
in which you could disclose some but not all. wouldn't that be generally true, whether this applies or doesn't apply? >> what you are describing is a normal administration of state secrets. if the government invokes it, yes, we are saying the court can look at it. it cannot use it as a vehicle to decide the merits of the case? >> why not? >> i don't know. we have a motion to dismiss. all we have is that. before we decide whether the case should have been dismissed or not dismissed, doesn't the district judge and perhaps the court of appeals and for all i know, maybe us, have to look at this information? >> we are not saying that in a normal state secrets case, the courts, if necessary can't look , at it. >> why don't we say this? say this case needs to be dismissed, and it doesn't displace -- this doesn't displace anything that is
relevant here. but, we should send it back, and the ninth circuit was wrong, and the district court, and maybe this circuit too, should look at the information if they deem that necessary, in terms of the relevance to the case. and decide its relevance, how it was obtained. and then, someone can move, like the government. to dismiss the case. >> the district court already did that. the government moved -- the ninth circuit did not reach the dismissal question. >> maybe they should go back and say well, given the nature of this information, and how it was obtained, we will review whether the district court was right to dismiss this and maybe we send it back to the district court, a lot of things. my point is there should be a
way to look at the information for the court and decide what to do, not whether this particular statute applies or not. >> we don't think the statute -- >> [indiscernible] >> that's what we think the proper disposition is. reject the district court of appeals's erroneous view of 1806 and have it go back to the ninth circuit to review the district court's determination that the evidence was covered by the privilege, which responded and -- responder did not challenge and then whether dismissal is necessary. >> justice alito. justice sotomayor. >> answer my question directly. 1810 gives any person who has been unlawfully surveilled the right to seek damages punitive,
and otherwise, and attorney's fees. if i'm hearing your arguments, you say that if a party has standing, and very few have standing, because very few know they have been surveilled the way these plaintiffs do. i've had research done and the only plaintiffs that have standing -- where a court has found standing is the fourth circuit case. i think what you are saying to me is if these plaintiffs who appear to have reasonable grounds to believe they were surveilled, so they have standing, that they can't proceed. they can't have a judge look at this evidence to determine whether it was lawful or unlawful, because you say if a judge says it is unlawful, and i don't know how, because if a judge says it is unlawful, how are you injured?
all they have to do after that is prove their damages. you have no defense once they have proven that. >> we don't believe they have established aggrieved party status, whether to one extent or against two, electronic surveillance was not disclosed. -- against who, like chart surveillance was not disclosed. >> the person being unlawfully surveilled, if the government claimed secret doesn't have recovery after 1810. >> unless it can be proved some other way. >> [indiscernible] >> you could have other disclosures of surveillance, may be in criminal prosecution or in some other way. there was testimony by the informant here in a criminal proceeding that disclosed some information that could have been the basis for an 1810 proceeding. the bottom line is 1810 says nothing about the states secret
privilege. >> answer my question. once you claim state secrets, you say there is no way to look at the information to determine whether it was unlawfully obtained. >> if the requisite was -- four dismissal was satisfied which means the court agreed that the case could not proceed because the information is so central. there is nothing in 1810 that suggests the displacement of the state secrets privilege. if all those requisites were -- yes, the case would not go forward. >> i will follow-up on justice breyer's question. i'm not sure i understood the government's position. is the government's position now that it would be wrong to dismiss on the pleadings without any further inquiry into the nature of the materials and how they affect the lawsuit? >> no, the government invoked
the state secrets privilege. the government argued that therefore, the first amendment claim, needs to be dismissed. because that claim was actually based solely on the first amendment rights. and to defend against that, it would be necessary to look at the sources and efforts of that. >> i think what justice breyer was suggesting is, in a case like this, maybe dismissal would be the only appropriate remedy for the problem. but, maybe not. it depends. it depends on some investigation of the materials and how they figure in the case and what harms they present and so forth. and the ninth circuit seems to have misunderstood that point. maybe you can test that point. the ninth circuit seems to say
, in a kind of old-fashioned, cotton-like way, the government says state secrets and we just have to dismiss it in the ordinary case, putting aside the statute. and i thought we made clear in general dynamics that that is only true in a small category of cases, where the subject matter of the lawsuit itself revealed a state secret. but, in cases like this, where it is an evidentiary privilege, first, we are going to decide what kind of evidence should be excluded. and then, we are going to decide, based on the full evidence of the case, whether the suit can go forward or not. in all fairness to the parties. and that is what it seems the ninth circuit did not understand and maybe you can test. but i'm not sure that you do. >> i think the ninth circuit did get confused. i want to make the point that the district court did what you are describing. the government invoked the state secrets privilege. the district court did not
disagree that all of the information was privileged. the district court proceeded to say can this case properly go forward without that information and said no. because that is the central fact of the case. what was the basis or reason for the investigation. and that can't be adjudicated without doubling to the information, or at the very least, it would risk disclosure of that. that first amendment claim should be dismissed. that should have been affirmed in our view, by the ninth circuit. but, they did not reach that question because they went through this other process of saying 1806 displaces the state secrets privilege. therefore, there is no basis for dismissal under the state secrets privilege, at least as of now. so, we think it should go back, where we think the ninth circuit should have affirmed.
>> you think it should a firm but you are saying the ninth circuit should affirm and decide as to whether all those conclusions about the nature of the evidence required dismissal, which was correct. >> yes. >> justice gorsuch. >> i'd like to come at that same question from a different angle. here is where i am stuck. general dynamics reaffirmed that the state secret privilege allows the government to keep evidence away from the party. but that generally, the party is free to prove its case using other evidence. does it want to disclose the evidence and defend itself or keep national security safe? ok, if i were pressed, i would say -- the problem is that now, the
government takes a stronger view of what the state secrets doctrine is. it says any time we have a secret, we are entitled to use that evidence in our possession, without telling anybody about it. that is basis for dismissing the suit, more or less as a matter of routine. instead of being put to the choice of accepting a tort judgment but keeping a secret, it gets both. it gets to reject judgment and keep the secret. in a world in which the national security state is growing larger every day, that is quite a power. it seems like the ninth circuit operated on this understanding of the state secrets doctrine, which might be inconsistent with fisa. then we have to ask the question of which displaces? that arises if we except the mistaken view of the state secrets doctrine.
i think your friends on the other side made this point and why don't we address the state secrets problem and say the ninth circuit misunderstood state secrets doctrine and reverse on that basis. then, we don't have to get into this question of a conflict which only arises on a mistaken , understanding state secrets doctrine. what say you to that? >> the ninth circuit did not reach the dismissal issue. >> i understand that. >> with respect to their argument of 1806, in their view, it displaces the state secretes privilege, not just to the -- with respect to the exclusion of the evidence not just to the dismissal of the remedy. we think that is clearly wrong and -- >> why would this be an alternative based for performance? finding for the respondent? >> it would change the judgment. the opinion contemplated that if it assumed, with frankly, no basis to assume, that the entire
case would be wrapped up with electronic surveillance. >> that is clearly wrong. why not just say that and send it back and we don't have to get into the question of what state secrets is? >> i think it is the other way around, with all respect. this is a case in which the ninth circuit relied on statutory holding, which could have ramifications that are much broader than this. but, the point about the court deciding would require annulment of judgment. the ninth circuit contemplated that the state secrets privilege could be invoked and maybe even the dismissal remedy would be available in the district and the court of appeals view. on remand. so, it is not proper for the court without a petition. >> justice kavanaugh?
>> several questions. first i want to make sure, with your question for just as gorsuch, do think that question is before us? >> i don't think it is before you. it has been advanced as an alternative round. i think it would require -- of the judgment. it seems to us that the statutory question is antecedent, the way the court looked at it. if the court was wrong, then it should reach the question of dismissal. i would think this court would want the ninth circuit's view of looking at the evidence, is this a case where dismissal might be appropriate before it entered into the question of how and when dismissal can follow as successful? >> you said the district court looked at the evidence, concluded that state secrets privilege applied and dismissed. when we send it back to the ninth circuit, they will be able to review that. >> yes.
the evidence is available to this court. there is a declaration that was presented to the attorney general holder, when he asserted the state secrets privilege. >> that was your answer to justice breyer and justice kagan. picking up on justice thomas' first question, he referred to the constitutional status of the state secrets privilege. i would be curious how that plays into our statutory interpretation for a i think you said at one point we should not expect congress to do a drive-by on the state secrets privilege. through this kind of language. but, how does the potential constitutional backdrop on the state secrets privilege play in? >> i think the court should insist upon a clear statement that congress intended to abrogate a privilege that is critical to the presidents -- president's exercise of his article to powers.
there was, i think, a strong presumption against reading in a suppression of evidence. a statute that is protective of the government's interest and national security. top of privilege and a disposition of a case that would undermine that. >> there would be a major article two issue if congress tried to do that. we don't need to get into that. >> that is correct. the same thing would be true about a statute that is said to be in derogation of the common law. you would not need a statute to -- she would not read a statue statute to overcome that. >> the search claims are still alive regardless of what we are talking about. we are talking about the religious claims? >> the district dismissed the fourth amendment claims. we did not seek that on appeal. it is the religion claims. that goes to the reasons and the scope of the investigation. that is the core of the state secrets privilege. the government decided that at this point, it was not going to assert the state secrets
privilege over the fourth of -- fourth amendment claims. they can be disposed of on another basis. >> are they still alive in the district court? the search claims? >> not the way the district court disposed of it. the ninth circuit said it was wrong for the district to do that. if this case goes back the ninth , circuit presumably would reach the same conclusion. >> with the government oppose the search claims continuing? >> no, i think that was our position on appeal. i'm standing here, i can't think of a reason why. >> thank you. >> justice barrett? >> do you concede that 1806 f could apply in a suit against the government? maybe under 1810, or something else. >> 1810 cannot be brought against the government. if the government intended to introduce the evidence in that case against civil plaintiffs,
it could be used. it is not a free-flowing discovery. >> i understand your position that when the government wants to use or introduce evidence that it applies then. the government might seek to do that, even if it is not a criminal prosecution. >> if the plaintiff brings a suit against the government and the government intends to use the information 1806 stuff would be available. >> you are not taking the position the judge in the ninth circuit took? he seemed to view as more confined to the circumstance. >> we think it applies irrespective of who brought the proceeding. it is the use against the person so, the against is what triggers it. >> thank you. >> thank you, mr. kneedler.
ms. carol. >> thank you mr. chief justice. may it please the court i would , like to make two points. first, section 1806 f provides a narrow mechanism for deciding the admissibility of surveillance materials. it does not speak at all to the fact that the government's assertion of the state secrets privilege deprived the individual defendant of a valid defense, a defense that depends not only on the surveillance evidence that would be an issue in a fisa proceeding but on the , privileged information about the targets, predicates and scope of the information. second, adjudicating the individual defendant's liability
with no jury and no right to participate, would violate the seventh amendment and due process clause. even if the court of appeals and interpretation were plausible, fisa does not compel it. and this court should reject the reading that raises those concerns. i welcome the court's questions. >> if we accept the government's argument, we don't have to get to that, right? >> accepting the government's argument that fisa does not displace the privilege, i think that resolves the question because that was the holding of the ninth circuit. the ninth circuit instructed the district court to decide whether -- in camera and expert say whether the defendant violated the constitutional and statutory provision. >> i may have confused matters, i mean the constitutional avoidance argument. >> correct. these are constitutional issues that would arise if the court of appeals interpretation of pfizer -- fisa were accepted.
i think it is largely accepted that under the court of appeals reading, you would have an in camera adjudication, not just of the lawfulness of the surveillance but of the ultimate liability on the first amendment and it will protection claims. i think it is undisputed that this would violate the individual defendant jury trial rights and due process rights. mr. kneedler has made some good points that we agree with with the language of 1806. regarding what a use is and what a covered motion is. i think there is a broader point to make about that statue. that is that the claims are orthogonal to what is the issue in the first of him in an equal -- first amendment equal protection claims and the defenses that are necessary to those claims.
as has been discussed, the result of an 1806 procedure is limited to suppression or admission of the fruits of the surveillance, other recordings and potentially disclosure to , the aggrieved party of the application, materials and court orders. none of that enables revelation of or certainly not disclosure to my client or the ability to adjudicate the merits and defenses of the religious discrimination claims, which, as i said, don't turn on the surveillance evidence. they turn on who was or was not a target of investigation, why were they under investigation? what were the motivations and predicate and what was the degree of fit between the methods used and legitimate counterterrorism goals. what were my client's motivations. those are classic jury questions.
they are questions that are subject to the privilege as the judge found. and, they cannot come out, even in a limited proceeding, even if we thought that 1806 was available. so, i think that that is a broader reason why the statute as a whole cannot be read to displace the privilege. the privilege here is, as mr. kneedler indicated, was properly asserted and the court of appeals did not dispute that. the district court, and he says he paid especially close attention to the classified materials, which the district court described as providing comprehensive and detailed information, informing the court as to the sensitive and privileged backs. -- privileged facts. judge carney concluded from that classified material that it provided essential evidence to showing the purported
dragnet investigations were not indiscriminate schemes to target muslims, but were properly predicated and focused. that is the information that the individual defendants need to be able to defend themselves. and this court recognized, as the lower courts have uniformly recognized, that it would be manifestly unfair to allow claims to go on in that situation where the governments assertion of the privilege prevents an individual capacity defendant from putting forward a defense that depends on that privileged information, which, again, even if there were some reason or reading that would allow limited proceeding to in camera to determine the lawfulness under fisa, that is not a mechanism for bringing it out or allowing my clients to rely on it. >> a couple of quick points on the text of 1806.
justice gorsuch, you asked what could the phrase otherwise views mean if we are not talking about entry of evidence? i agree that that language covers use of information outside of a court. but even in court, there are many ways to use information without entering it into evidence. in this context with surveillance information, the most likely use would be to impeach a witness. there are other ways -- >> you agreed there are not many ways to use evidence in court without entering it into evidence or disclosing it, impeachment being a good example of disclosing it. >> impeachment is a use. >> it involves disclosure. >> refreshing the witnesses recollection -- >> do you think another example is a good one? >> i think also, in a summary judgment proceeding, as a language in rule 56 indicates, when you use information, it is
-- in support of the summary judgment motion, it is not officially being entered into evidence. it has to be in form that could be admissible as evidence. >> my question for mr. kneedler and you is can you think of another use, in court, that doesn't involve disclosure or entry into evidence? each of the examples you have given me involves at least disclosure. >> i'm not sure that you do disclose to the jury when you are refreshing a witness's recollection. >> you are disclosing it to the witness, right? >> that is true, if it is something that would help them to remember their recollection. that brings in the fact that we could be talking about proceedings that are not subject to the rules of evidence as well. thinking back to the broader question, even if the court thought it were plausible to read that language, a reading of section 1806 f, that would allow
the court of appeals thought, adjudication, not just of whether the privilege was properly asserted, not just of whether the fisa surveillance was lawfully authorized and conducted, but whether the individual defendants are liable for damages on constitutional claims, to have that adjudication conducted without a jury, in a procedure in which they have no apparent right to participate, would plainly raise grave and undisputed constitutional questions that plainly favor the government equally and more plausible interpretation of the statute. we think the ninth circuit was wrong to hold that the privilege was displaced by fisa. it should, as mr. kneedler suggested, have affirmed on the ground that judge carney relied on, given that the classified information indicated as the district court put it, the classified information gives defendants a valid defense that
is no longer available because of the assertion of the privilege. >> counsel, why is it that the government's reading helps you? i thought the essence of your claim is that an ex parte review hurts your client because it doesn't give them a chance to be a part of it. the seventh amendment, correct? why does it matter if the government is the one that is moving to use the evidence? why wouldn't your agents be suffering the same deprivation? >> i think it would be and i think that relates to the broader point i was making that, even if 1806 f is invoked, regardless of how you think it could be invoked, it doesn't get to the real problem in this case, which is the unavailability of the information.
-- privileged information. to your honors point, the constitutional claims we have mentioned under the seventh amendment and the due process clause are violations that would arise from the court of appeals. may i finish my response? >> yes. >> from the court of appeals interpretation. under the avoidance canon, where this court has before it, two probable interpretations of the statute, the avoidance canon calls for rejecting the interpretation that would raise those great questions. -- grave questions. we think the government's interpretation as recently adopted by the fourth circuit is certainly plausible and that the ninth circuit's interpretation is certainly not more than plausible. the avoidance canon would come into play there. >> thank you. justice thomas? just as gorsuch, anything
further? justice barrett? thank you, counsel. >> thank you, mr. chief justice. may it please the courts, defendants do not seek to just exclude secret information from the case. if that were true, there would be no need to file religion -- a motion to dismiss religion claims. what they seek is to not just exclude information, but also to dismiss it. to be clear, as you said repeatedly below we will not , seek discovery on the religion claim. we are prepared to proceed just on our own evidence. this case is entirely about dismissal based on their need to use secret information to defend themselves. we recognize they have a legitimate interest in defending themselves. neither congress nor the common-law promote dismissal on that basis. congress struck a balance.
fisa permitted them to defend the suit. using information we will never see. but as justice sotomayor suggested earlier, it requires the court to review the information ex parte and in camera to determine if the surveillance was lawful. section 1806, as justice gorsuch already mentioned, allowing seek -- applies not just when they seek to enter information but also when they otherwise use it. use is very broad. it means put into service. otherwise use is a different matter. there has to be a way different from just using or disclosing that is also covered by the statute. relying on information to win dismissal in a lawsuit obviously is using the information. the government is also wrong in the common-law. the reynolds privilege is a privilege. privileged information is excluded, but the case goes on without it. it is 150 years of case law. in both the u.s. and england. they cannot point to a single
case where plaintiffs could make their case without the provision of information, and still get court ordered dismissal. we are entitled to that opportunity, whether under the fisa rules or common law. i want to emphasize the court of appeals did not hold that we can ever see privileged evidence. the district court orders proclaim jaws. the government can we assert the -- reassert the privilege. >> council, can you give me an example of a case where "use" was employed in the way you are suggesting? >> yes, your honor. the court has said that just referring to a gun in the course of a criminal transaction is using it. i think also, that statute is not the only use. we have "otherwise use." it is
even more broad than the examples the government used. sticking on the same point, if i may, it is conceivable that there maybe some other use you can come up with, although i do not think i have heard one yet that is not at this group disclosure or entered into evidence. but that is not the question. the question is when you refer to a document in your motion and say we win and the other side loses revision claims because of those documents, that is also a use of it. it is clear that might be true. >> but it seems counterintuitive that you would say you used it by excluding it. >> yes, your honor. this goes to the point between the relationship of common-law and fisa. if they were only seeking to exclude it, if they kept it in our vault and let the chips fall where they may, i do not think that would be use. but when they say we don't just want the common-law traditional rule we want to dismiss the
, religion claim, even though you can make the case with their own evidence, that transforms it from just keeping it excluded into affirmative use to effectuate the dismissal of the religion claims. at that point, it becomes a use. that is when it is relevant that the decision below if they are only finding it displaced with respect to the dismissal remedy, that is important because it is when they move to dismiss that it becomes a use and merely an exclusion of the information at issue. >> just said information ed issue. what they are using, it seems to me, is privilege. they are not using the information. the whole point of this statutory provision in 1806 is to keep the information from being used. i think it makes more sense to talk about using the privilege as opposed to the counterintuitive reading, at least i think this is their argument, which is that this
proceeding is to prevent the use as opposed to using it. maybe a consequence of it is the privilege is established. that means the information cannot be used. but i don't see how not allowing the information to be introduced is using the information. >> i don't disagree with your honor there. i think all we are trying to do is keeping it out and not used, that is not used. it is because they argue the state secret's privilege authorizes dismissal. unlike every other privilege, even when the plaintiff's can move forward without the information. that is why it becomes a use. but to go back to your question, chief justice, to say they are using the privilege and not using the information is a little odd. the motion makes no sense without the references to the information.
they are using both. i think that is the natural meaning of the word otherwise used. i cannot imagine how their motion would make sense if they didn't refer to the information. once they are referring to it, not just to keep it out, but also between dismissal of the religion claims, that is what makes it into a use. >> could they win dismissal by invoking privilege if there were no evidence to support? >> we cannot think of a context in which that would arrive. it seems in order to win, it is not just the fact that we are excluding the information, it is also that the evidence, even though it is out of the case is not actually out of the case. that could be some work to dismiss claims. even though the plaintiff say they can make their case without it. >> it would be a perfectly natural argument to say we think because of the natural security
basis that this information cannot be used. that is how you would say before the judge. the judge is supposed to say, well, you are using it, so you lose. >> again, your honor, if that is all they were saying, because of the national security implications, they would have -- this information has to grab the case, they would have filed a motion in limine. they would not file it just in response to the claims. and then they would file a motion that would not be used. but instead, but they have done this on the pleadings and declarations only because we put them in the case because we are concerned of the possibility really, just on the pleadings, they have had the whole religion aspect of the claims. -- of the case. first, the account has to be gone. that is not just a result of the exclusion of the evidence. it is different from the case where the plaintiff's need the
information in order to receive. this is the case where we have all the information we need on these religion claims based on our own evidence, and yet they are still saying the religion claims cannot go forward. >> can you explain the basis for the distinction that i understand you to have just made? perhaps i did not understand what you just said, but what i thought you said was that invoking the state secrets privilege for the purpose of excluding evidence is a use, but invoking the privilege for the purpose of seeking dismissal is not a use. >> i must've misspoken. i am sorry, your honor. that is exactly backwards. they just invoke to exclude the information. >> i am sorry, backwards. what is the basis for drawing that distinction? if invoking the privilege is using the privilege, wouldn't you be using the privilege in both of those situations? why in one and not the other? >> it is using the privilege but
not the information. >> why is it not using the information? >> in normal discovery, normal privileges, these arguments we agree with, it is an attorney-client situation and someone tries to get discovery, we say that information is privileged, we want to keep it out of the case. you don't say you are using the evidence. but if i say because you have done that, now the underlying claim on which you sought discovery has to be dismissed, even though you say you don't need the evidence and don't want it anymore or we never wanted it but anyway, you don't want it. , now you are doing something more than keeping it out of the case and that the stiction is -- that distinction is critical. >> i read professor donahue's brief. so that is very much in my mind. she seems to know what she is talking about. so i am thinking you don't want the case dismissed.
of course. totten doesn't apply. this should have had nothing to do with that. they should just look at reynolds. >> that is right, your honor. >> that is what seems to be the issue and the problem. so do you really care whether the government is right or wrong on the displacement of the state secrets doctrine of 1806 or whatever? no, 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 does not solve the problem, simply to say we don't want the information, namely you, of course you don't. if the government says, judge, look at this, you will see that we both cannot introduce the information. it is just too secret, unbelievable harm if we do and
it proves beyond any doubt their case is wrong. what is the court supposed to do then? and there, i don't know. we have justice scoliosis opinion -- scalia's opinion on that. and where i am at the moment is i don't know but we don't have to decide that yet. and it might not be a situation that is the dilemma i just described until not only the district court under the proper standard but also the court of appeals looks at this and sees there is some special reason to dismiss the case or not. no automatic dismissal. no automatic, no dismissal, we don't know. there you are. that is where i am. say anything you like. >> thank you, your honor. three thoughts i have about that. first, why do we care about fisa? we have two distinct paths that we see in the court. the court can hold the state
secrets privilege does not authorize dismissals, either at all outside of contracting cases , or where the very subject matter is not secret or the narrow ground which i think your honor discussed with mr. kneedler, which is on the pleadings before any of the , information has been looked at. the district court looks at declarations, not the information. >> mr. kneedler says in that case it would not get to affirmance. how would it? >> i think because of the court of appeals decision. the court says it is adopting the d.c. circuit judge's rule that the government is essentially using the ballot defense rule. -- valid defense rule. you can't dismiss on the pleading. you have to look at the information and see if the injustice we are contemplating happened is true, that there was no bug in mr. fazaga's office when he was giving intensive
religious instructions to his congregants or maybe it was , warranted if that is true, it is a great injustice on the government. once they know that is true, you dismiss the case. that is what then justice scalia said that. the decision below adopts that, that is why i think it would be an affirmance. the court can said it was too early, send it back. you can say fisa does not displace it we don't have to , decide that. we vacate that and sent it back the state secrets portion of the case. it would lead to a similar result. just as congress wanted, the court is looking at the evidence not just to decide if it should , be secret, but if the government broke the law, if the surveillance was unlawful. that i think is the critical
reason why, because of that last part, it is not affirmance. that being said, i still want to come to the other part of your question. we only have to win that it is an alternative basis for affirmance. if it is in the question, because you cannot determine if fisa displaces the state secrets privilege without knowing what the state secrets privilege does, then it seems the court can address it that way as well. we said in compliance with this court's rule 15.2 that we will argue that under general dynamics, there is no dismissal available in this case. remedy available in this case. we also argued that in the court of appeals. a slightly different theory, but we preserve the claim. and then they replied in the -- on the merits. and cited the court of appeals cases that affirmed their rule. now they say it is not in the question presented. i think it is in the question presented. we gave notice of that. they did not say it was not. i think it is an alternative basis by which an alternative path to victory, but just to go back to the second part of your
question, not to argue abandonment of fisa. i want to mention what was not discussed today. 1806f says if the attorney general files a declaration that disclosure or adversary hearing would harm national security, then it shall apply these ex parte procedures we have been talking about to determine if the surveillance is lawfully authorized and conducted. at that standard, the attorney general has a declaration that -- filed a declaration that disclosure would harm national security is almost identical to the standard in reynolds that they bulging the information could risk endangering national security substantively. the substantive rule is almost identical. the result of their view is that the same attorney general
declaration, because this declaration satisfies 1806 f, it says disclosure of this information would reasonably endanger national security. attorney general declaration in our case gives the government two options. they can move to dismiss under state secrets privilege, which is what they have done, or they can go through 1806f and give the information ex parte to the court even though the statute says these are the procedures that shall be applied whatever -- whenever these conditions are met. that is a powerful displacement effect. not for the state secrets privilege in general but as , applied to cases involving domestic electronic surveillance of americans. that is the issue in this case giving the district court ex , parte review, not evidence, not disclosure to us because the decision below says they can reassert the privilege if there is a disclosure to us. but that aspect, that ex parte
in camera review for cases involving domestic electronic surveillance, on that aspect, 1806f, occupies the field and takes away any options, including outright dismissal under what they say is the state secrets privilege. >> i guess what strikes me as wrong about that argument is that if you look at 1806, you just take a step backward and are not focusing on what this word means and what that word means. if you just take a step backwards, what 1806 is about is deciding whether surveillance is legal. and according to 1806, that matters with respect to whether the government can use it in the standard way that illegal evidence cannot be used in the preceding. and for whatever reason, congress also thought it mattered with respect to discovery requests on the part of a plaintiff. that is a very different focus. was this obtained illegally? because we think that question
has something to do with whether it should be discoverable or whether it should be usable in court. from the normal state secrets inquiry, which is illegal, legal, who cares. it is just dangerous for national security. >> yes, your honor. i agree. i agree that the purpose of it is to determine if it was lawfully authorized or conducted. i think it is broader than what the individual defendants counsel suggested. that it is only about fourth amendment. it certainly incorporates first amendment. fisa is very much about the first amendment. the persecution of religious minorities. i think it is broader than that, but i agree in determining about whether surveillance was lawful in whatever context it may arise. and i also agree that often in the pre-fisa practice, the only inquiry in the state secrets privilege analysis was whether
or not the information should be secret. but there were also cases where the courts were not simply interested in whether or not it was secret. they were also interested in whether or not the fourth amendment was violated here. there is also a dissent in helms where the judge makes this argument. it is not implausible that congress may have seen a backdrop of abuses in the church community. surveillance of vietnam war protesters, mlk, and even the justice of this court i believe. they would have said we don't just want to know if this is a secret. we also want to know, did you break a law? they use the same substantive's pandered -- substantive standard to decide if the >> what is your government >> what is your was acting illegally. answer to ms. carroll's argument about the rights of her clients? that in conducting this ex parte
in camera review the judge says , this was illegal because it was based on religion. is that the end of the case for her clients? >> i don't think it is the end of the case. >> can they have a trial? >> on that question, i think if the court finds that, you will not be able to give that same question to the jury. we acknowledge that. >> is that a violation of their due process rights? >> we have deliberately not said in our briefing whether we think that is true or not. >> that is why i am asking you now. how can that possibly be consistent with due process? that is the star chamber, a judge, in camera, expert take not only without the participant , present or the defendants , without their attorneys determines they violated the , plaintiff's first amendment rights. >> i want to say after i answer your question why i think it is
not a reason to consider the statute. but to answer your question directly, i think the tricky issue for a court if it were considering the constitutional question would have to first consider, what about the mirror image? obviously, the same exact thing you said is true. if it is true they have engaged in entirely lawful conduct, it sure sounds bad for the reasons your honor said. but if they have been engaged in unlawful conduct and you will dismiss the claim without having any opportunity to have a jury trial and the rest of it and due process as well, we have not been able to understand. >> do you think that everybody who is aggrieved and would like to bring suit has a due process right to bring that suit and recover? >> no, but this is a different situation. for both sides, we are hypothesizing, and this gets to my reason for believing it is premature.
we are hypothesizing we have beaten summary judgment. we have shown standing. all the other doctrines, yet here we are. that situation i think it is a , mirror image problem. >> i don't see how it can be a mirror image problem because the due process rights of potential plaintiffs are not the same as due process rights of potential defendants. but beyond that, if this is the result to which your argument leads, isn't that powerful reason for interpreting the statutory language differently? >> i think it is not. for two reasons. the main reason is if you look at 1806g, which is the provision that authorizes relief indicate, once the district court has determined whether the surveillance was or was not lawfully conducted, is as you suppress the evidence or otherwise grant the motion in accordance to the requirements of the law.
what we read that to mean if we have an 1806f process and they find the surveillance is unlawful, they have the right to say at this this would violate point, the seventh amendment and bind us to that. therefore it would not be in accordance with the requirements when i say the issue would be litigated, this has not happened. the 1810 claim in this case, which we heard mr. kneedler say they might move to dismiss it, the defendant may well be out of this case long before we get to that. if they were spying on him while he was leading his housemates and prayer without a warrant, they may use that judgment and the case would be gone. i think it would be wrong to construe the statute very narrowly and destroy the ability to litigate 1810 claims, which
is unlikely to happen. >> what about granting the motion in court with accordance of the law language. with that be with the state sequence privilege? >> it does. on the relief side, that does. it is consistent with what would happen -- actually, i'm sorry. two reasons. let me take a step back a second. fisa has said we see the privilege is still available here and have not required disclosure to the plaintiff. i think that is consistent with fisa, both 1806f and going
through the process of deciding whether or not information was lawfully authorized and conducted. it is consistent on the f part because the statute does not say the district court shall disclose to the plaintiff's it is needed to determine the lawfulness of the surveillance. you may disclose protective orders only if needed to determine the lawfulness of the surveillance. what that means is the government has the ability to argue. that extremely unlikely event that has never happened. it happened once and got reversed on a deal. the district court ordered a disclosure. extraordinarily unlikely event that happens. government would have the ability to come in and say, no, even with whatever else you want to do or whatever it is, there is no way to protect national security to get this information. i think that is the state secrets privilege. it has the same argument. >> the state secrets privilege does lawfully or unlawfully obtained, we don't care, because it would hurt national security. you are conceding that even after you run through the gamut of 1806f and conclude this was
unlawfully obtained, you are conceding the state secrets privilege could kick in and still keep it out. >> at the early stage. the main thing it does is fisa brings the court into the picture where they can see the evidence. the portions of it that require disclosure, the plaintiff, that has may in it. i want to make sure clearly i am answering your question. you are looking at me like i am not answering your question. >> i am trying to see how it plays out. >> you have to get the information to the court. that is what congress wanted. the court finds out that they are breaking the law or not. but if you ever want to disclose to the plaintiff, to go beyond the court and now go to us and the public, now the government has the ability to argue that that is not permitted. >> so your opportunity to get relief. >> yes. >> you lose. it is unlawfully obtained but because it was protected by the
state secrets privilege, you cannot recover. >> i think that is possible in some cases. in our particular case, we said the relief clearly says we want the evidence, the information unlawfully obtained to be destroyed or returned. that is what we said. i thing we have made a request to retain. absolutely. but we said destroyed or returned. what we would argue in the district court if we ever got to the spot is even if they cannot show it to everyone, they still need to destroy it. that would make a difference and our clients would at least know the government, whatever records they got from them because mr. fazaga was leading his convocation in prayer or he decided as a command to embrace his faith, they would know that got burned because it was not right. it was not right to spy on them because you thought they were dangerous just because they were embracing their faith.
so it would not be everything perhaps that we want, but it is well within the scope of the complaint and would preserve the government privilege. that being said, i think we are so far ahead of it. all the court would have to decide now in either of the two paths is fisa displaces the state sequence provision when the government is seeking to use information as it is here. you would not even have to decide this question about request to obtain. you can just decide that they are using it, otherwise using it, and because of that, they can keep the information in their vault, but we get our day in court on the religion claims. or the court can decide it was premature to dismiss. you can decide it is premature to dismiss state secrets at this stage. >> where does article 2 foot into your analysis? two judges on the circuit both started with article 2, the backdrop, and the roots of the
state secrets privilege and sent in interpreting 1806f, this is a reading of text but this is also a very odd way for congress to narrow the state secrets privilege, which is so foundational on the national security of the country. >> the bottom line answer, and i have a lot of thoughts on the doctrine they were discussing, but the bottom line answer is when we are not talking about an area of exclusive and conclusive executive power. >> i will stop you right there, sorry. that is debatable. that is the issue that hopefully we never have to decide what i think right now that is -- decide, but i think right now that is a question. you avoid deciding that question, which has a lot of ramifications, and i understand exactly what you are saying on
the jackson framework there. we avoid deciding that by not interpreting the statute to trigger that. >> if we are on the same page on the standard, i would say it is limited to the domestic electronic surveillance of u.s. persons. this court invited congress to legislate in that area. and also equally important, your honor, only ex parte in camera review. that second element is also important. if you look at nixon, look at the last footnote on page 716. what the court says is we expect the district court now have to go through, this is high level communications between the president and his advisors, and excise the information that may be privileged under reynolds. >> nixon also as you know well distinguished national security information, so that would be different. at least if it is presidential communications. >> i am making a narrow point about ex parte review. that footnote size reynolds. the district court should cooperate with government
counsel to go through the information that may need to be excised under reynolds. so i think the court was imagining is the president's information about national security with his high-level advisers may not belong in "the new york times" or anywhere else. but the court can look at it to determine if the president broke the law. the scope of the displacement here is very narrow. it is limited to ex parte review by courts and there's not a serious article to question. >> i appreciate all that explanation which is helpful. one other question which is are you seeking to narrow totten on your state secrets argument or are you taking it as written? >> we take it exactly as general dynamics described it. and also as tenna described it. you had asked, i think it is mr. niedler where
the passage in totten, they say judicial -- i can't remember the exact language but review of any matter that could give rise to the divulging of secret information, that passage. i would point to the fact it's the same passage picked up in tenet and the government relies on it to say this is broad. the very next paragraph there the court says -- i'm talking about totten now, as a general matter, we can say that suits about matter which is are inherently secret cannot be maintained. and what they cite is marital communication, attorney-client communication, all these things, regular privilege law. that part of the case is actually not resting on a national security rationale but just saying look, i want to sue my wife over a promise she made
in the kitchen or something, that's going to be barred. and the court can figure that out very early and don't need to wait for security that obviously that is barred. >> to pick up justice breyer's question earlier, it doesn't seem like we need to get into that, if we agree the government -- i know you don't want us to. but if we agree with the government on the 1806f issue and senate backed the circuit as justice kagan and breyer described, all these issues can be flushed out and come back to us where that's the central focus of the case and feel like it would be doing a drive-by on a massively important issue if we get into that. >> i agree the narrowest ruling in our favor, probably the whole case, otherwise used -- maybe i'm the only one or maybe not, i don't know. but i think otherwise uses very plausible as a ground of statutory interpretation for fisa and you don't neat to get into the question that plaintiffs can use it in discovery if you find the government is using it here.
but the narrowest ground, perhaps narrower than that would be to say it was wrong to dismiss on the pleadings in this case. we know the very subject matter of this case is not a state secret. the government said this person worked for them and said they expect the majority of the audio and video will be available for the litigation below and the district court still dismissed the whole thing without ever looking to see whether -- justice cavanaugh: the ninth circuit hasn't passed so why would we pass on it if the ninth circuit did, that would be out of order for me. >> it's true the argument the dismissal was premature was our primary argument. the issue is i read their brief, perhaps you can ask them but i read their brief to be arguing for a firm -- going underneath, an affirmance of the district court order and you cannot affirm the district court order. maybe that's wrong. justice cavanaugh: i heard it differently but he can get back on that on rebuttal. >> we disagree on fisa but want
the court of appeals to address the prematurity argument and state secret is nowhere here. if your honor is fine, the question presented does not include state secretaries at all then that would mean you shouldn't touch the valid defense issues in the case as well. >> i'd like your help with a problem, and that is asking this question that we're struggling with about 1806 and consistency with state secrets raises a question what state secrets is. and in 1978 when the church -- after the church commit issued the report and court adopted fisa reynolds was on the books and was pretty much it and totten was over there having to do with contracts with spies. and so the state secrets doctrine pretty clearly meant you exclude the evidence and the case continues. it's only since then and
relatively recent times the government has asserted the totten bar really kicks in in a lot of cases and that lower courts have run with that ball. so asking with a the state secrets means today and whether that implicates fisa seems to be a different question. >> yes, i completely agree, your honor but would note in their long court note in their reply brief, here's all the court of appeals cases and leaving aside most those case is where the plaintiff can't make their case, but leaving that aside the string side ends before 1978 and ends around 1980, i think. even in all the cases they cited they don't prove that schiffal dachshund dismissal -- dismissal was a contemplated remedy under state secrets outside the government contract and context in 1978 and i think it's quite clear actually in 1978 there's lots of state secret cases, professor donahue's brief in other places and some of them in ours as well but it's very clear
that that prior rule, the evidence was excluded and the case goes on without it and we cite cases from england in the early 1800's. justice gorsuch: i want to interrupt and think my real problem and hoping for an answer for, we're in tremendous agreement on this point but what i'm struggling is with is the case asks us, does fisa displace state secrets doctrine? and if this court hasn't definitively answered what the state secret doctrine is hard and if congress had in mind one version of the state secret's doctrine, the one that's relevant we should be asking about, you know, or do we ask something other question. that's what i need your help with. >> i see. i see. i haven't thought to be perfectly honest whether the question presented is incorporating today's understanding versus that one. when you're looking at what
congress contemplated, i can answer that part of the question for you, congress obviously in 1978, seeking a state secret doctrine in 1978. the fact they're saying oh, look, fisa is not displaced and yes, allow us to dismiss claims, that doesn't make any sense because if you're going to say, ok, freeze the world and operate as it existed in 1978 then you can't be giving them a dismissal remedy. i don't know if that satisfactory answers your question but that is my view on that subject. i also think that if the court thinks that the state secrets question is not within the question presented, if that's the court's view, then -- but the court also thinks that the district court can proceed on the state secrets question, i'm not sure there is a rationale for answering either one to be perfectly honest with you. that's my view on that. justice gorsuch: what happens in your view in this situation. the plaintiff claims that electronic surveillance was conducted for discriminatory
reasons in violation of the plaintiff's right to the free exercise of religion makes that a prima facie case and not that hard to do in an employment case. justice alito: the evidence obtained through the lectronic surveillance shows without any doubt that in fact the surveillance was not based on the plaintiff's religion but based on the fact there was evidence the plaintiff is a terrorist. what happens in that situation? and the latter is discovered by state secrets and the government says this can't be -- this is too sensitive to be disclosed, what happens there? >> i think there's two options, under the decision below which adopts the d.c. circuit's view based on the malaria situation, then judge scalia's view, the court can look at the information and find the exact finding you made and rule for the defendants. that's one view. the common law view is different. the common law view is look,
privilege sometimes hurts one side, sometimes hurts the other side and often leaves evidence out that probably would have resulted in the victory. you let the chips fall where they may. and the decision below did not adopt that rule and adopted the rule from the d.c. circuit. those are the two plausible options. what is not acceptable in our view is to say even if the evidence may show the opposite, may show it was blatant religious discrimination simply on muslims is what he was -- the f.b.i. told him to surveil simply on muslims, that nonetheless would still win dismissal because hypothetically they could have a full defense and the fourth circuit view and pressed on the other side and that we strongly would object to, your honor. >> thank you, counsel, 1806-f the provision we're talking about takes up the whole page of 207-a and yet consists of two sentences. the sentence we've been talking
about is 20 lines and squirreled away in there are these few words that you're relying on for displacement of the state secrets, privilege for a reading of fisa that has enormous consequences for state secrets for national security and i just wonder why would congress put such significance language stuck in this provision? isn't that an oblique way to have the consequences you're ascribing to that language, that the jargon in our opinions, as you know, bearing an elephant in a mouse hole which is a little overused, but what's the answer to that. >> yes, so i favor short declarative sentences but leaving that aside, i disagree with their claim that fisa as a whole is hiding anything in a mouse hole. it's passed in the wake of expensive abuses uncovered by
the church committee and this provision, it says if the attorney general, perhaps it should have been written in a sentence or its own section, i probably would have put it in three sections if you think of its parts. but it clearly says that if the attorney general finds that disclosure of the information or and ad veer sharal hearing would harm national security, then you adopt the ex parte and in camera review process and determine if the surveillance was lawful. i think this is a statute about domestic electronic surveillance, the whole thing creates the surveillance court and does those things as your honor obviously knows. i don't see this as a mouse hole, if it was trying to displace state secrets in other context not related to electronic surveillance, there would be a better argument that doesn't make sense they did this here but the displacement is only in the sense it creates all the procedures, the exclusive procedures for how you litigate cases about surveillance. chief justice roberts: i think
your argument hinges on the "or other materials" language and everything else is consistent with mr. niedler's point and governs when the government wants to introduce evidence and not affording a vehicle for what the court below did. >> no, your honor, i would say there are two parts that contradict that view and one is the plain language, any motion of request under any other statute or rule which they really have to add words into and say any motion about admissibility or in response to, they're having to cram narrowing construction on to this very broad text. the second point, i think it is something justice sotomayor said right early on, in their view -- i think mr. niedler said this, they can dismiss 1810 claims and just win dismissal of 1810 claims on the state's secret privilege.
justice alito asked about structural considerations and the structural in our favor is very strong. in their view every 1810 claim they can pick and the one they want to dismiss on state secrets can dismiss it using the same attorney general declaration described in 1806-f. i think those are our two strongest arguments why that part, the request to obtain part of the case -- part of our argument goes for us. obviously the use argument is different and if we win on that we don't have to get into that. chief justice roberts: justice thomas, justice breyer? justice breyer: the use provision requires the government to give notice it is going to use the information. and that makes sense when the government wants to introduce it at trial so it gives notice it's going to use it at trial and that allows the other party to move to suppress the evidence. but what sense does it make to require prior notice when what
the government is going to do is to invoke the state secrets privilege? you just invoked the states secret privilege where you send a notice to say we intend to invoke the state secrets privilege and now we invoke the states secret privilege, make sense? >> in this case it does and served the useful function and they served a motion and we said as a preliminary matter before even briefing it, we tried to make some of these totten versus reynolds kinds of arguments to the district court and we said don't even look at the information, first decide as a threshold matter whether or not the state secrets doctrine can apply here and may be a necessary evil you'll have to ask look at ex parte information and if you avoid that would be better and is unconstitutional. we lost obviously that argument. but i think it served a very important function here. and yeah, i do thinking it's
important for that reason. justice alito: one other question, under 1806 do you think that the judge must be able to look at all the evidence to the extent it's necessary to decide whether the surveillance was lawful? >> its applications, orders, and such other materials as are necessary to determine, i don't know what the scope of "such other materials" is. the court of appeals predicted, didn't decide but predicted that the scope of evidence that would be reviewable to determine whether the clearly electronic surveillance for fisa purposes, like leaving recording devices in a prayer hall and walking away, to describe if that was discriminatory on the basis of religion would be the same information you would need to decide if his consensual conversations were also in violation of the free exercise
clause but the court said if that's wrong, then that's fine, then the district court can say it's wrong and then it can apply normal state secret privilege. justice alito: what i'm interested in is in cases involving the state secret privilege, isn't it true that the court does not necessarily look at all of the evidence, there are situations in which the evidence is too sensitive, the most secret -- think of the most secret evidence that the government possesses. 1806 seems to say that if that evidence has bearing on whether the surveillance was lawfully conducted. >> our position is fisa brings it into the evidence and the court -- they are worried the court might leak the information.
they can do that. if they want to use it to show the surveillance was lawful, they have to give it to the court as long as it's within that such other materials related to surveillance. that's what we think. i'm not sure the court has to address that question here. obviously it's, again, quite premature and i think the court could hold that if this were, like, nuclear weapons in hawaii or one of these other things, i don't know how it would happen in the case that's 15 years old but i think the court could say we're not deciding whether there might be some set of information, maybe it's because that part is in the constitutional corps if somehow the president were involved in our case which seems quite implausible to me and say we're not deciding that little part of it, but in general fisa displaces the privilege and what it says is other such materials relating to the surveillance has to be turned over to the court, not to us but the court.
justice alito: wouldn't that be quite something because just dealing with some supersecret information in district court, in district courthouses around the country would create an incredible security problem, most district courts don't have the facilities to deal with information of that sensitivity. >> we're only talking electronic surveillance of americans and the claims don't arise if we're talking about things, for example, what this court was dealing with last month in a different states secrets case. we're only talking about that. and obviously in criminal cases, justice alito, already courts all the time are doing fisa ex parte and in camera review where the government is trying to use the evidence in government cases. justice alito: only if the government chooses to use the information in the criminal case. >> our view is congress thought in this context given the history of abuse it
happened in this particular area, it was important to interpose the courts to play their role to ensure that surveillance remained within the confines of the law. >> justice sotomayor? justice sotomayor: you claim wanting to use this information. the government hasn't made a motion to use it. it made a motion to dismiss. you can see that whether or not that motion to dismiss is appropriate under reynolds and general dynamics and all that case law shouldn't be addressed by us, correct? >> no, your honor. i believe it's within the question presented and the court has the authority -- and we did argue it below but said in the b.i.o. justice sotomayor: but you agree it hasn't been properly briefed before. in the ninth circuit didn't look at that. mr. arulanantham: the ninth circuit didn't look at that
because on bank 65 in the jefferson decision it ruled that totten and reynolds were on a continuum. and before general dynamics. justice sotomayor: that hasn't been addressed by them, not the way you've argued it about. mr. arulanantham: no, your honor, it was disclosed under precedent and didn't that make argument there. justice sotomayor: if you were to lose and i know you desperately don't want to. but assume my assumption that a all we hold is no one has invoked 1806 here, and we send it back for the court below to decide how state secrets interacts with a motion to dismiss, is that the narrowest ruling we could issue? mr. arulanantham: yes, your honor. holding that either -- as i had discussed with justice cavanaugh is you shouldn't have dismissed
on the pleadings or that we want the ninth circuit to decide if you should have dismissed on the pleadings. i would just point, just note, i guess, the enbank ninth circuit foreclosed our argument about the scope of the reynolds privilege here and was before general dynamics and perhaps we sotomayor: right, we could say look in light of the holdings of general dynamics, they can do that anyway? >> yes, your honor. that would be the narrowest. justice kagan: suppose the easiest question in this case, i think, is the question of when dismissal is appropriate and that the ninth circuit decision was in some important way premised on an incorrect
understanding of when dismissal is appropriate in a states secrets case. and suppose, too, that i find the 1806 questions quite difficult. and if the entire discussion of the ninth circuit was premised on this error about state secrets dismissals, one wouldn't have to get into that. that would seem an attractive solution to me. but that leaves an opinion on the books which may well be wrong, that the ninth circuit view of 1806, in fact is in -- incorrect, so what should i do? >> i think the court could affirm on the alternative ground but that would still leave the ninth circuit opinion on the books, for your point, -- to your point, your honor.
i suppose the court could say under these circumstances -- our first argument to the ninth circuit was the dismissal was premature. perhaps the court should say we think that the court should have addressed that question first and for that reason we vacate the decision and ask the court to address that question first. i mean, under that you wouldn't say whether it was right or whether it was wrong, you're saying that under these circumstances, given the significance of the issues or for whatever other reasons we think it more important to address the question whether the dismissal here is premature and the district court did not look at the actual underlying evidence, the district court didn't explain why when we said we would move for summary judgment on the religion claims didn't say why that would somehow lead to inevitably the
summary disclosure of information unless they carried the risk and it was them that caused the risk. so i suppose your honor could take that approach. i feel like your question sort of did assume we'd lose on fisa in the end. but our view is the court could also affirm on either of those two grounds but i guess your honor already knew that. have i answered your question? i sense -- yeah. justice gorsuch: you're saying it may be possible to vacate and remand the case and say it was premature for the ninth circuit to determine that fisa displaced state secrets without first asking what state secrets is and how it applies to this case. >> yes, your honor, as justice sotomayor had suggested, particularly in light of general dynamics. and if i made, your honor, there are two aspects to that, one is whether dismissal is available in light of general dynamics and the other is the prematurity part and whether you can do it on the pleadings or have to let the case play out.
>> justice kavanaugh. justice kavanaugh: i agree with you there would be real doubts whether the executives power, article 2 power to conduct domestic surveillance would be exclusive and preclusive under category 3 of the jackson framework. i agree that would be doubtful in my view. although we haven't said that. but at minimum i think the government is saying in this separation of powers back and forth between the executive and congress, what the executive is due is that congress be clearly, directly, be given some clear indication of an intent to intrude on the state secrets privilege than we have here and the chief justice's questions about a few words and justice alito's questions i certainly would second that the district
court that this kind of information, depending on what it is, is not the kind of information you want floating around even in the white house to people much less floating around the country, depending on what it is, of course. so on that question, that article 2 influences the reading is kind of what i'm getting at with article 2, not the exclusive, preclusive. >> i think there are other statutes that have crossed this bridge, the congressional action is one, sepa and fisa and other provisions of fisa which require very extremely sensitive programs that the government is running to be disclosed to this court. in that sense, when we're talking about domestic surveillance and only ex parte review and that, that's the answer i would give before. one other thing i would say, your honor, is we are talking about rules for litigation.
and it's when you file something in court, all of that. and it's very well recognized that congress has the power to set up a set of rules for litigation, whether it be evidentiary rules or other rules. avanski and tarasus talks about whether there might not be a power over -- it's a denaturalized context and when you talk of making the evidentiary rules, congress' power is even heightened. we're not talking whether the government has the power in the first place to do some thing but talking about where they've already done it and now we're setting remedies up. 1806-f and 1810 are mechanisms, and even if you believe them it's about government's use, the whole thing is about what happens in court. i think there also, we're far afield from what i would think of as potential core article 2 concerns. >> justice barrett? justice barrett: i do have a question, it's a follow-up to
something justice alito said earlier, you have religious claims in the suit and the suit is about whether the surveillance violated or discriminated on the basis of religion. but the review of the application and related documents show there was no evidence of religious discrimination, it was based on very good evidence that the targets were terrorists. you said in that circumstance, like ok, well, then they've asserted the states secrets privilege, let the chips fall where they may, that dismissal is not an appropriate remedy under the states secret privilege. did i misunderstand that? >> your honor, yes. there are two options. what you described is the traditional common law rule and was the rule in 1978. justice barrett: it proceeds forward? but my question is what happens to the individual defendants? let's say the evidence they can use to defend themselves against the claim that they were religiously discriminated is in this body of evidence protected by the state secret doctrine and you're saying dismissal is not a remedy so they go in with their
hands tied behind their backs and they are sitting ducks? >> under common law that is certainly the result. justice barrett: except under common law you have a privilege like attorney-client and it is common law could be pierced if it would violate the due process rights, but if the state secret privilege is not common law and has a constitutional element, i'm not sure the due process rights of the defendant could pierce it. >> yes, i'm just thinking of common law cases that are cited in professor donahue's brief, republic of china versus mcdonald douglas and they say they want the information and chips fall where they may. justice barrett: can it happen if there's a constitutional element to the privilege? >> if we're talking article 2 -- no, but you're asking about a -- justice barrett: i say chips -- i am asking about if that chips fall where they may, even if it violates the due process rights of the defendants.
>> there's another option which is justice scalia's option, but yes, i think it's often going to be true, if the due process laws requires someone needs the evidence, obviously that would trump the common law. that just seems -- justice justice barrett: assumes the state privileges secret is common law. >> yes. but if you're asking if you have a conflict due process and element 20 of the state secrets privilege? i don't know. i would think that again whatever the answer is it would be within the scope of the statute because in accordance with the requirement of law. justice barrett: hard to see the chips fall where they may if it's the individual defendants deprived of access to information they need to defend themselves on the claim they discriminated on the basis of religion. one must imagine in justice alito's hypothetical it's utterly clear there was no religious discrimination. >> yes. i want to talk about the other option. but the last thing i'll say before i do that and this is discussed to some extent in tenet and cases like that the government can always indemnify.
when we're talking about people working for the government which is typically what will happen in an 1810 case. if you're talking about the mirror image problem, do you let the harm of the due process problem you're talking about or the seventh amendment problem you're talking about fall on this side of the ledger or our side of the ledger, we're out of luck even if they blatantly broke the law. justice barrett: the due process rights aren't the same for the defendants and plaintiffs. >> but seventh amendments are certainly the same. let me get to the other point. then judge scalia and building on a prior case, elsburg, said the court -- this has become a sealed case, the d.d.c. circuit rule and is the rule adopted by the decision below in this case, is that in this situation the court can look at the information as justice alito had imagined, decide that yes, there is no basis for finding that these people were discriminated against and rule for the defendants. and that actually is what happened in malaria, -- malario,
where the person had the claim they thought a first amendment claim they thought the court held which should survive summary judgment but they said but we've seen the evidence and we know that claim is wrong and so they nonetheless rule for the defendant and i think that option would certainly be available under the court of appeals decision in this case so i think if you affirmed that option. justice barrett: you're ok with that option? >> yes. we haven't challenged it here. but the very last thing i would say about that is our clients may have had real targets but the instructions the informants said he got and what he did was he went all over the place and -- justice barrett: i'm not just talking about just the facts of your case and how we interpret what may say about state secrets have ramifications beyond your case. chief justice roberts: rebuttal, mr. kneedler? >> first of all, we make it
think sense to review what the ninth circuit did decide, not what it did not decide. the ninth circuit did not decide whether the district court's dismissal, only the first amendment claim was proper on the basis of the state secrets privilege, because it said the states privilege was displaced by fisa. there is no doubt the privilege existed in reynolds at the time fisa was enacted. so there is no reason to think that pfizer displaced that well-established privilege. the pressure of the -- the question is what happens if the privileges validly asserted and the evidence is removed from the case. the question is if congress would have thought about the
state secret privilege itself, not the assertion of the, and as to whether 1806 (f) displaces the state secret privilege, i think for a number of reasons it does not. it allows for the attorney general to control things, not the head of the agency, which is who invokes the state secrets. pfizer was enacted -- fisa was enacted, but what congress did in 1806 (f) was to codify a procedure that had been developed by courts for the suppression of evidence that was obtained by electronic surveillance. and only if the attorney general decided to put forward the evidence if justice alito described. and there are many other things
that make that clear. subject -- subsection f refers to a motion to suppress or obtain discovery. but the materials or the evidence, and subsection g does not say grant judgment, it says grant the order to suppress or otherwise grant the motion, which means the motion to exclude the evidence may be suppressed or something less than suppressed. so it is all wrapped up in the procedures for suppression. on the question of dismissal, we think that it is artificial to separate totten from reynolds. reynolds had a footnote that discusses that national security information can be excluded, but says sees -- and describes it as a case where it was not
permitted to go forward because it was obvious from the pleadings that the case cannot go forward because it concerned a state secret. but there are other situations in which it is essential to the case. such as here, they allege that here plaintiffs violated the first amendment rights. but the evidence might well be a basis for defending against that. that essentials of the case, in the same way that the contract in totten was central to the case. general dynamics contains a number of passages that are helpful in support of the idea that dismissal can be an appropriate remedy. for example, respondent say that the plaintiffs were happy to make their case and let the chips fall where they may, putting aside the threat of blackmail against the government
in that situation, forcing it to settle or maybe except an injunction against it. but general dynamics seems to be unrealistic to separate, as the court of federal claims did, claims from the defense, and allow the former to proceed while the latter is barred. claims are allowed to proceed together that have established that justification for judicial relief. if the issue cannot be faithfully adjudicated without the disclosure of national security information, and -- then it can and should be dismissed, whether this arises from that government's assertion of the defense. it is not even an affirmative defense, it is in fact a factual defense. and in fact, in general dynamics