Amicus Curiae Brief — Federal Bureau of Investigation, et al., Petitioners v. Yassir Fazaga, et al.
Supreme Court briefSep 28, 2021
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No. 20-828
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IN THE
Supreme Court of the United States
____________________
FEDERAL BUREAU OF INVESTIGATION, ET AL.,
Petitioners,
v.
YASSIR FAZAGA, ET AL., Respondents.
____________________
On Writ of Certiorari to the U.S. Court of Appeals
for the Ninth Circuit
____________________
Brief Amicus Curiae of
Free Speech Defense & Education Fund,
Free Speech Coalition, Conservative Legal
Defense and Education Fund, Downsize DC
Foundation, and Downsize DC.org
in Support of Respondents
____________________
PATRICK M. MCSWEENEY
ROBERT J. CYNKAR
CHRISTOPHER I. KACHOUROFF
MCSWEENEY, CYNKAR
& KACHOUROFF, PLLC
3358 John Tree Hill Rd.
Powhatan, VA 23139
RICK BOYER
INTEGRITY LAW FIRM, PLLC
Lynchburg, VA 24506
JAMES N. CLYMER
CLYMER, MUSSER
& SARNO, P.C.
Lancaster, PA 17603
WILLIAM J. OLSON*
JEREMIAH L. MORGAN
ROBERT J. OLSON
WILLIAM J. OLSON, P.C.
370 Maple Ave. W., Ste. 4
Vienna, VA 22180
(703) 356-5070
wjo@mindspring.com
Attorneys for Amici
Curiae
*Counsel of Record
September 28, 2021
══════════════════════════════════════════
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . iii
INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT
I.
THIS COURT’S DECISIONS NEITHER PREVENT
IN CAMERA EX PARTE REVIEW BY A COURT NOR
REQUIRE AUTOMATIC DISMISSAL OF A CLAIM . . . 3
II. THE GOVERNMENT URGES THIS COURT TO
ADOPT A POSITION OF DEFERENCE TO THE
EXECUTIVE BRANCH THAT HAS NO LIMITING
PRINCIPLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
III. MANY JUDICIAL DECISIONS HAVE VIRTUALLY
IMMUNIZED GOVERNMENT SURVEILLANCE
FROM ACCOUNTABILITY TO THE FOURTH
AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
IV. HISTORY DEMONSTRATES THAT THE COURT
CANNOT REASONABLY ASSUME ALL ATTORNEY
GENERAL CLAIMS OF STATE SECRETS
ARE VALID. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A. The FBI Has Repeatedly Conducted
Surveillance Based on False Premises for
Political Purposes . . . . . . . . . . . . . . . . . . . 20
B. FBI Surveillance Agents Have Repeatedly
Acted as Agents Provocateurs . . . . . . . . . . 27
ii
C. The FBI Is Not a Trusted Government
Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
iii
TABLE OF AUTHORITIES
Page
U.S. CONSTITUTION
Amendment IV . . . . . . . . . . . . . . . . . . . . . . . 3, passim
STATUTES
50 U.S.C. § 1806(f) . . . . . . . . . . . . . . . . . . . . . . . 6, 10
50 U.S.C. § 1810 . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CASES
Abilt v. CIA, 848 F.3d 305 (4th Cir. 2017). . . . . . . 10
Am. Ins. Ass’n v. Garamendi, 539 U.S. 414 (2003) . 8
Brinegar v. United States, 338 U.S. 160
(1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, passim
Chicago & S. Air Lines, Inc. v. Waterman S. S.
Corp., 333 U.S. 103 (1948) . . . . . . . . . . . . . . . . . . 8
Dep’t of the Navy v. Egan, 484 U.S. 518 (1988). . . . 8
Dep’t of Transportation v. Ass’n of Am. RRs, 575
U.S. 43 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Islamic Shura Council of S. California v. FBI,
779 F.Supp.2d 1114 (C.D.Ca. 2011). . . . . . . . . . . 2
General Dynamics Corp. v. United States, 568
U.S. 478 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8
New York Times Co. v. U.S. Dep’t of Justice,
915 F. Supp. 2d 508 (S.D.N.Y. 2013) . . . . . . . . . 16
Salisbury v. United States, 690 F.2d 966 (D.C.
Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Totten v. United States, 92 U.S. 105 (1876) . . 5, 6, 7
United States v. Jones, 565 U.S. 400 (2012) . . 13, 16
United States v. Reynolds, 345 U.S. 1
(1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, passim
iv
MISCELLANEOUS
T. Aaronson, A Declassified Court Ruling Shows
How the FBI Abused NSA Mass Surveillance
Data,” The Intercept (Oct. 10, 2019) . . . . . . . . . 21
Associated Press, “Charges dismissed in Michigan
militia case,” FoxNews (Mar. 27, 2012) . . . . . . . 28
L. Bell, “Durham Indictment Indicates Real
Purpose Behind Michael Sussman’s Alleged
Lies,” Newsmax (Sept. 20, 2021) . . . . . . . . . . . . 27
J. Bovard, “Fed’s misconduct in Cliven Bundy
case stems from Ruby Ridge,” The Hill
(Jan. 14, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . 33
J. Bovard, “Ruby Ridge and the FBI License
to Kill” JimBovard.com (Aug. 22, 2021) . . . . . . 35
B. Chakraborty, “FBI informants had bigger role
in Whitmer kidnap plot than thought: report,”
Washington Examiner (July 21, 2021). . . . . 28, 29
D. Clark, “FBI fires agent Peter Strzok, who
sent anti-Trump texts,” NBC News
(Aug. 13, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . 23
A. Cohen: “OIG: FBI Inappropriately Tracked
Domestic Advocacy Groups,” The Atlantic
(Sept. 20, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 21
J. Davis, “Newly Released Docs: FBI’s Spying
on Trump Campaign Was More WideRanging Than Previously Disclosed,”
Western Journal (Feb. 25, 2021) . . . . . . . . . . . . 23
John Diedrich & Raquel Rutledge, “ATF uses
rogue tactics in storefront stings across nation,”
Milwaukee Journal Sentinel (Dec. 7, 2013). . . . 30
K. Dilanian & H. Jackson, “FBI agent who
helped launch Russia investigation says Trump
was ‘compromised’,” Yahoo (Sept. 7, 2020) . . . . 24
v
C. Downey, “Durham Grand Jury Indicts ClintonLinked Attorney Involved in Russia Probe,”
MSN.com (Sept. 16, 2021) . . . . . . . . . . . . . . 26, 27
“FBI Attorney Admits Altering Email Used for
FISA Application During ‘Crossfire Hurricane’
Investigation,” U.S. Dept. of Justice (Aug. 19,
2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
B. Fredericks, “FISA Court rips FBI over lack
of candor in Trump campaign eavesdropping,”
New York Post (Dec. 17, 2019) . . . . . . . . . . . . . . 27
C. Gibbons, “Still Spying on Dissent: The
Enduring Problem of FBI First Amendment
Abuse,” Rights and Dissent (2019). . . . . . . . 29, 30
W. Harris, Tyranny on Trial: The Trial of the
Major German War Criminals at the End of
World War II At Nuremberg, Germany,
1945-1946 (Southern Methodist University
Press: 1954). . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19
G. Jarrett, “Gregg Jarrett: Flynn cover-up —
FBI’s Wray must go. Americans need director
they can trust,” Fox News (May 5, 2020). . . . . . 32
H.W. Jenkins, Jr., “Abolish the FBI,” Wall
Street Journal (Sept. 21, 2021) . . . . . . . . . . 34, 35
R. Kessler, “FBI Director Hoover’s Dirty Files,”
Daily Beast (July 13, 2017) . . . . . . . . . . . . . . . . 14
J. Kruzel, “Judge blasts FBI over misleading info
for surveillance of Trump campaign adviser,”
The Hill (Dec. 17, 2019) . . . . . . . . . . . . . . . . 33, 34
C.S. Lewis, God in the Dock: Essays on
Theology and Ethics, (Wm. B. Eerdmans
Publishing Co.: 1972) . . . . . . . . . . . . . . . . . . . . . 15
E. Lichtblau, “The FBI Is in Crisis. It’s Worse
Than You Think,” Time (May 3, 2018) . . . . 31, 32
vi
T. Lifson, “Obama goes Nixon, claims executive
privilege on F&F,” American Thinker (June 20,
2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
T. Lynch, edt., In the Name of Justice
(CATO Institute: 2009). . . . . . . . . . . . . . . . . . . . 35
J. Pegues, N. Sganga, S. Becket, “FBI director
details ‘totally unacceptable’ failures in Larry
Nassar case,” CBSNews (Sept. 15, 2021) . . . . . 35
Glenn Harlan Reynolds, “NSA spying
undermines separation of powers,” USA
Today (Feb. 10, 2014) . . . . . . . . . . . . . . . . . . . . . . . .
B. Rivers, “FBI abuses in domestic surveillance
of the Trump campaign eerily echo Red Scare
raids,” NBC News (Jan. 10, 2020) . . . . . . . . 26, 31
R. Scarborough, “Devin Nunes warns intel chiefs
against targeting Americans, ‘particularly
Republicans,’” Washington Times (Apr. 16,
2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Alina Selyukh, “NSA Staff Used Spy Tools on
Spouses, Ex-Lovers: Watchdog,” Reuters
(Sept. 27, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A. Speri, “The FBI has a long history of treating
political dissent as terrorism,” The Intercept
(Oct. 22, 2019). . . . . . . . . . . . . . . . . . . . . . . . . . . 22
H. Stephens, “Supreme Court Filing claims Air
Force, government fraud in 1953 case,” Inside
the Air Force (Mar. 14, 2003) . . . . . . . . . . . . . . . . 9
Laura Sullivan, “Biden Declassifies Secret FBI
Report Detailing Saudi Nationals’ Connections
to 9/11,” NPR (Sept. 12, 2021) . . . . . . . . . . . . . . 10
J. Sullum, “The FBI’s Systematic Dishonesty,”
Reason (Dec. 18, 2019) . . . . . . . . . . . . . . 24, 25, 26
vii
A. Thornebrooke, “GOP Reps Demand Answers
After FBI Exposed for ‘Widespread’
Surveillance Abuses,” Western Journal
(May 5, 2021) . . . . . . . . . . . . . . . . . . . . . . . . 30, 31
INTEREST OF THE AMICI CURIAE1
Free Speech Defense and Education Fund,
Conservative Legal Defense and Education Fund, and
Downsize DC Foundation are nonprofit educational
and legal organizations, exempt from federal income
tax under Internal Revenue Code (“IRC”) section
501(c)(3). Free Speech Coalition and DownsizeDC.org
are nonprofit social welfare organizations, exempt
from federal income tax under IRC section 501(c)(4).
These amici were established, inter alia, for the
purpose of participating in the public policy process,
including conducting research, and informing and
educating the public on the proper construction of
state and federal constitutions, as well as statutes
related to the rights of citizens, and questions related
to human and civil rights secured by law. Some of
these amici have filed amicus briefs in several cases
involving government surveillance of its citizens.
SUMMARY OF ARGUMENT
The legal issue in this case raises the question posed
by the Roman poet Juvenal: “Quis custodiet ipsos
custodes” — or “Who will guard the guards
themselves?” Ruling on the Government’s proposition
that a federal court should accept without question a
representation by the head of any federal agency that
disclosure of his agency’s actions would injure national
1
It is hereby certified that counsel for all parties have consented
to the filing of this brief; that no counsel for a party authored this
brief in whole or in part; and that no person other than these
amici curiae, their members, or their counsel made a monetary
contribution to its preparation or submission.
2
security, runs the significant risk of deference to lies,2
even if “noble lies.” Courts cannot dismiss the
possibility of false claims designed to achieve a
purported greater good, as we know this happened.
Not long ago, lawyers for the FBI asserted they “had to
mislead the Court regarding the Government’s
response ... to avoid compromising national security.”
District Judge Cormac J. Carney found it neccessary
to instruct lawyers for the FBI: “The government
cannot, under any circumstance, affirmatively mislead
the Court.” Islamic Shura Council of S. California v.
FBI, 779 F. Supp. 2d 1114, 1117 (C.D. Ca. 2011).
The Government contends that well-established
precedent requires the Court to defer to the assertion
of the state secrets principle, here requiring dismissal
of most of the complaint. That conclusion is based on
a misreading of this Court’s decisions. See Section I,
infra. The Government’s position contains no selflimiting principle, allowing the Executive Branch to
take control of a process which is the province of the
Judicial Branch. See Section II, infra. This case
should be considered in the context of many prior
judicial decisions that have made it virtually
impossible to obtain judicial relief from “Deep State”
surveillance abuses. See Section III, infra. The track
record of the FBI and the Department of Justice in
recent years makes it impossible for the Court to
2
See generally T. Lifson, “Obama goes Nixon, claims executive
privilege on F&F,” American Thinker (June 20, 2012) (“Holder has
lied to the Issa committee twice [about the Fast & Furious gun
walking scandal, in December 2011 and June 2012] and retracted
his statements after a time lag.”).
3
accept government representations at face value, and
still carry out its role applying the Fourth Amendment
and other important constitutional protections to
ubiquitous government surveillance. See Section IV,
infra.
ARGUMENT
I. THIS COURT’S DECISIONS NEITHER
PREVENT IN CAMERA EX PARTE REVIEW
BY A COURT NOR REQUIRE AUTOMATIC
DISMISSAL OF A CLAIM.
The statement that opens the Government’s brief
contains at least as much argument as does the
remainder of its brief. There, the Government
struggles mightily to establish from this Court’s
limited jurisprudence two principles on which it seeks
to have this case decided and dismissed: (i) the mere
assertion of the state secrets privilege disgorges the
Judicial Branch not just of any duty, but also of any
authority, to examine the basis for that assertion; and
(ii) that the normal consequence of the assertion of the
privilege is that claims against the government would
be dismissed. Neither principle can be supported.
From United States v. Reynolds, 345 U.S. 1 (1953),
the Government asserts as a general rule: “‘the court
should not jeopardize the security which the privilege
is meant to protect,’ by unnecessarily ‘insisting upon
an examination of the evidence, even by the judge
alone, in chambers. Brief for Petitioners (“Pet. Br.”) at
4. And the Government asserts what it wants to be
the rule even more forcefully this way: “The privilege
4
generally forecloses even in camera consideration of
the evidence.” Id. at 37.
In truth, Reynolds decision states “The court itself
must determine whether the circumstances are
appropriate for the claim of privilege and yet do so
without forcing a disclosure of the very thing the
privileges is designed to protect.” Id. at 8. Justice
Vinson also explained with respect to the similar
privilege against self-incrimination that “a complete
abandonment of judicial control would lead to
intolerable abuses.” Id. He stated that “the court
must be satisfied from all the evidence and
circumstances and ‘from the implications of the
question in the setting in which is raised, that a
responsive answer to the question’” would be
impossible. If the court is so satisfied, the claim of
privilege will be accepted without requiring further
disclosure.” Id. at 9.
As to the portion of the decision focused on by the
Government, Justice Vinson never explains the reason
why ex parte in camera review presents a risk of
disclosure. That statement follows a comment that
“judicial control over the evidence in a case cannot
be adjudicated to the caprice of executive
officers.” Id. at 9-10 (emphasis added). The Court
only stated that “we will not go so far as to say that the
court may automatically require a complete
disclosure to the judge before the claim of privilege will
be accepted in any case. It may be possible to satisfy
the court” without such a review.” Id. at 10 (emphasis
added). Lastly, the Court stated that “the showing of
necessity which is made will determine how far the
5
court should probe in satisfying itself the occasion
for invoking the privilege is appropriate.” Id. at 11
(emphasis added). Thus, Justice Vinson’s dicta is well
short of establishing a general rule prohibiting judicial
review of the executive’s assertion assertions of state
secrets.
From General Dynamics Corp. v. United States, 563
U.S. 478 (2011), the Government asserts that this
Court: “had long ‘recognized the sometimes-compelling
necessity of governmental secrecy by acknowledging a
Government privilege against court-ordered disclosure
of state and military secrets.” Pet. Br. at 3. The
Government further derives from that case this general
rule: “Where ‘the very subject matter of the action’ is
a ‘matter of state secret,’ the action may be ‘dismissed
on the pleadings without ever reaching the question of
evidence.’” Id. at 5.
Actually, the General Dynamics case addressed the
very different circumstance of a contract dispute
between the government and a government contractor.
What was at stake there was which side would leave
the court with more money in its pocket — with no
allegation of serious constitutional violations such as
now before the Court. Dismissing the civil action in
General Dynamics left each party where it stood. In
contrast, dismissing the action here leaves a serious
constitutional wrong unaddressed in a way that only
encourages further abusive surveillance by the
government.
Lastly, from Totten v. United States, 92 U.S. 105
(1876), the Government seeks to establish that: “‘as a
6
general principle,’ ‘public policy forbids the
maintenance of any suit in a court of justice, the trial
of which would inevitably lead to the disclosure of
matters which the law itself regards as confidential,’
including state and military secrets.” Pet Br. at 3; see
also id. at 26. And the Government asserts as a
general rule that: “Dismissal is required ... when the
‘maintenance of [the] suit’ would threaten to disclose
the privileged information.” Id. at 5.
In truth, the four paragraph Totten decision was a
claim by a contractor against the government, not
dissimilar from General Dynamics. The result of
barring litigation was considered fair because the
“service contemplated by the contract was of secret
service” and both parties “must have understood that
the lips of the other were to be for ever sealed.” Id. at
106. There is no contract between the plaintiffs and
the FBI to be enforced — only the constitutional rights
of the aggrieved plaintiffs to be protected.
Thus, the principles which the Government seeks to
extract from these cases are in no way binding here, as
those cases arose in very different contexts with little
application to this case.
II. THE GOVERNMENT URGES THIS COURT TO
ADOPT A POSITION OF DEFERENCE TO
THE EXECUTIVE BRANCH THAT HAS NO
LIMITING PRINCIPLE.
The issue of the relationship between the provision
of the Foreign Intelligence Surveillance Act governing
court review (50 U.S.C. § 1806(f)) and the common law
7
state secrets privilege must not be resolved by adoption
of the principle the Government advances. The
Government insists that many assertions of the state
secrets privilege should be immune from scrutiny even
by the judiciary.
Pet. Br. at 3-4.
Thus, the
Government essentially contends that as a practical
matter, that there is no limiting principle for the
invocation of the privilege by the Executive. This
invitation to extraordinary constitutional mischief —
especially in today’s previously unimaginable world of
high-tech surveillance — should be unequivocally
rejected by this Court.
The Court has concluded that the role assigned to
the President in Article II of the Constitution warrants
not only the exclusion of evidence but also the
dismissal of litigation if there is a “reasonable danger
that compulsion of the evidence will expose military [or
other] matters which, in the interest of national
security, should not be divulged,” United States v.
Reynolds at 10; see Totten v. United States at 107
(1876). The Government argues that it has the
absolute right to require a court to dismiss a claim
based on the Government’s mere assertion that the
national security would be at risk if the litigation were
to proceed. Pet. Br. at 28. Such a position, if adopted
by the Court, would enable the Government to avoid
accountability for even the most egregious violations of
constitutional rights, and actions that are destructive
of the broad public interest.
The flaw in the Government’s position is that, even
though the privilege has a “constitutional foundation”
(Pet. Br. at 3) the Government contends that the
8
evaluation of the propriety of any assertion of the
privilege should be done in isolation, irrespective of
other constitutional values, or even constitutional
abuses, that might be involved. And then those abuses
— of “even the most compelling necessity” (id. at 4) —
are hidden under the cloak of what amounts, under the
Government’s telling, to a supra-constitutional state
secrets privilege.
This Court has never decided that the Government
has the absolute right to require dismissal of claims
notwithstanding the consequences of ignoring other
countervailing concerns, particularly the Government’s
own misconduct. Certainly, the state secrets privilege
cannot be used to avoid addressing constitutional
violations. Consideration of such competing factors
was not involved in Totten, which first announced the
doctrine that litigation could be precluded if national
secrets might be disclosed. Similarly, the Court has
not considered such countervailing concerns in other
cases involving the state secrets privilege. E.g.,
General Dynamics Corp. v. United States; Am. Ins.
Ass’n v. Garamendi, 539 U.S. 414 (2003); Dep’t of the
Navy v. Egan, 484 U.S. 518 (1988); United States v.
Reynolds; Chicago & S. Air Lines, Inc. v. Waterman S.
S. Corp., 333 U.S. 103 (1948). Indeed, the Court has
not adopted the position that the Government has an
absolute right to require dismissal of a claim
regardless of the countervailing concerns about the
Government’s own misconduct. This Court should
emphatically reject the Government’s claim to have
such an absolute right.
9
It would be contrary to the fundamental concept of
popular sovereignty and political accountability to
allow the Government to secure the dismissal of claims
if it results in preventing the disclosure of its
constitutional abuses or other actions that offend the
public interest. As Justice Alito has noted: “Liberty
requires accountability.” Dep’t of Transportation v.
Ass’n of Am. RRs, 575 U.S. 43, 57 (2015) (Alito, J.,
concurring). Accountability for misconduct by the
Government, particularly violations of constitutional
rights, cannot be disregarded once a court receives an
invocation of the state secrets privilege.
The
constitutional rights of Americans must not be
sacrificed, as would occur if the Government’s absolute
prerogative to demand dismissal of claims is validated.
In the past, the Government has invoked the state
secrets privilege, only to have it later discovered that
no such secrets actually were involved. A leading
example is the Reynolds case, where subsequent
disclosures demonstrated that the claim of secrets that
must be protected was unwarranted and the privilege
likely was asserted to hide embarrassing facts about
the Government’s handling of the matter.3
Although this case originated under a prior
Administration, during the 2020 presidential
campaign, candidate Joe Biden sent a letter to the law
firm representing the families of victims of the
September 11, 2001 terrorist attacks, pledging that, if
3
Hampton Stephens, “Supreme Court Filing claims Air Force,
government fraud in 1953 case: Case could affect “state secrets,”
Inside the Air Force (Mar. 14, 2003).
10
elected, he would order that the state secrets privilege
be tailored narrowly.
On September 11, 2021,
President Biden ordered the release of a previously
withheld FBI report concerning the possible
involvement of Saudi Arabian nationals in those
attacks.4 Yet here, the government takes the broadest
possible reading of the state secrets privilege.
In every instance of an invocation of the state
secrets privilege, it is the courts’ “‘obligation to review
[claims of state secret privilege] with a very careful,
indeed a skeptical, eye, and not to accept [such claims]
at face value.’” Abilt v. CIA, 848 F.3d 305, 312 (4th
Cir. 2017). In this putative class action proceeding, the
constitutional rights of many individuals are at stake.
Only a careful evaluation of all legitimate concerns and
not simply the national security interest, as vital as it
may be, can produce the appropriate decision regarding
the application of the privilege.
Even if the Court were to determine that section
1806(f) does not supplant the common law state secrets
privilege, it should not allow the Government to invoke
the privilege without a review by a court of whether
the invocation is appropriate under the circumstances.
An in camera, ex parte evaluation is necessary to
ensure accountability. The Government argues that
procedures involved in an in camera review “plainly do
not guard against the risk that even in camera
consideration could inadvertently or indirectly reveal
state secrets and harm the national security.” Pet. Br.
4
Laura Sullivan, “Biden Declassifies Secret FBI Report Detailing
Saudi Nationals’ Connections to 9/11,” NPR (Sept. 12, 2021).
11
at 38. This bald representation should be dismissed.
There is no empirical support for such a claim. Courts
are equipped to judge the relative risks involved in
evaluating the appropriateness of a state secrets
privilege. Although executive agencies may be in a
better position than courts to evaluate the risk to
national security of disclosure of sensitive information
(see Salisbury v. United States, 690 F.2d 966, 970 (D.C.
Cir. 1982)), it would amount to a negation of
accountability to require courts to defer uncritically to
executive agencies when evidence of Government
misconduct is offered. It is never in the national
security interest of the nation for the government to
violate the United States Constitution.
Because the state secrets privilege is a judicially
established doctrine, the Court has the prerogative to
fashion the principles, standards, and procedures to be
applied in evaluating the invocation of the privilege.
This case provides the Court with an opportunity to
articulate an appropriate limiting principle to guide
courts in the review of assertions of the privilege.
III. MANY JUDICIAL DECISIONS HAVE
VIRTUALLY IMMUNIZED GOVERNMENT
SURVEILLANCE FROM ACCOUNTABILITY
TO THE FOURTH AMENDMENT.
The FBI’s current effort to bar judicial scrutiny of
its surveillance activities cannot be viewed in isolation.
Rather, it is the latest and most dangerous effort to
deprive the American people of information about or
relief from the federal Government’s pervasive
surveillance of their lives. The Government brief
12
makes clear that the FBI views this case in that
context:
Congress frequently creates statutory causes
of action without guaranteeing that all
prospective plaintiffs will be able to
litigate their claims to judgment. Various
impediments, such as standing, sovereign
immunity, the state-secrets privilege, or other
generally applicable doctrines, may stand in the
way of resolving the merits of a statutory or
constitutional claim in particular
cases—especially where litigation would
threaten the national security. See, e.g., Clapper
v. Amnesty Int’l USA, 568 U.S. 398, 401-402,
407-408 (2013) (affirming the dismissal of a
challenge to alleged electronic surveillance for
lack of Article III standing).... [Pet. Br. at 34
(emphasis added).]
Similarly, Respondents accurately explain that if
the position advanced by the Government prevails, it
would give the Government the final arrow in its
quiver necessary to undermine the protections
provided by Congress in 50 U.S.C. § 1810:
Whereas standing, sovereign immunity, and
other doctrines make civil rights litigation more
difficult in some contexts, FISA surveillance by
definition occurs for national security purposes
and virtually always involves secret
information. Defendants’ construction of Section
1806(f) would give the Government a tool to
dismiss nearly all 1810 suits, even where (as
13
here) Plaintiffs can establish standing and face
no sovereign immunity or other barriers. [Brief
for the Respondents (“Resp. Br.”) at 51 (bold
added).]
Some of these amici have filed amicus briefs in
Clapper5 and several of the other cases in which federal
courts, including this Court, have insulated widespread
executive branch constitutional violations from
challenges — especially Fourth Amendment
challenges. Associate Justice and Attorney General
Robert Jackson explained that few judicial remedies
existed for executive violations of the Fourth
Amendment: “[o]nly occasional and more flagrant
abuses come to the attention of the courts, and then
only those where the search and seizure yields
incriminating evidence and the defendant is at least
sufficiently compromised to be indicted.” Brinegar v.
United States, 338 U.S. 160 (1949) (Jackson, J.,
dissenting) at 181. Justice Jackson warned, “there are
... many unlawful searches ... about which courts do
nothing, and about which we never hear.” Id. This
problem is exponentially magnified where, as here,
Government officials act in secret, their activities never
being exposed to the light of day.
In United States v. Jones, 565 U.S. 400 (2012),
Justice Sotomayor warned that, because much
electronic surveillance “proceeds surreptitiously, it
evades the ordinary checks that constrain abusive law
enforcement practices” and “‘alter[s] the relationship
5
See Clapper v. Amnesty Int’l, Amicus Brief of Gun Owners
Foundation, et al. in Support of Respondents (Sept. 12, 2012).
14
between citizen and government in a way that is
inimical to democratic society.’” Id. at 416 (citation
omitted) (Sotomayor, J., concurring).6
Justice
Sotomayor questioned the “appropriateness of
entrusting to the Executive, in the absence of any
oversight from a coordinate branch, a tool so amenable
to misuse, especially in light of the Fourth
Amendment’s goal to curb arbitrary exercises of police
power and prevent ‘a too permeating police
surveillance’....” Id. (citation omitted). “In a regime of
surreptitious electronic surveillance when government
agents simply eavesdrop on a phone call or read an
email, there is no battered-in door or ransacked file
cabinet to alert the victim.” Brinegar at 182.
Massive surveillance by the FBI and the rest of the
Intelligence Community, done in secret, may never be
seen or challenged. In those circumstances, its fruit
can still be misused for nefarious purposes ranging
from analysts investigating girl friends,7 to seeking
political advantage for candidates favored by the “Deep
State,” to manipulation of Government officials
through threatened exposure of secret sins.8 It cannot
be that, even in those cases when plaintiffs have
6
See United States v. Jones, Amicus Curiae Brief of Gun Owners
of America, et al. in Support of Respondent (Oct. 3, 2011).
7
See, e.g., A. Selyukh, “NSA Staff Used Spy Tools on Spouses, ExLovers: Watchdog,” Reuters (Sept. 27, 2013); G. Harlan Reynolds,
“NSA spying undermines separation of powers,” USA Today (Feb.
10, 2014).
8
See R. Kessler, “FBI Director Hoover’s Dirty Files,” Daily Beast
(July 13, 2017).
15
standing and the truth comes out, federal courts
deprive Americans of a remedy.
The FBI would prefer to bar Plaintiffs from
asserting their claims of constitutional violations
because to do so would require the Government to
divulge alleged “state secrets.” Presumably, these
“secrets” would consist of particulars about how the
Constitution was being violated — including exactly
what communications were seized and exactly how
they are searched.
Paradoxically, the larger and more serious the
constitutional violation, the more compelling becomes
the Government’s need to hide its behavior. If section
1806(f) is undermined as a remedy, the Fourth
Amendment ceases to be a law that constrains
government surveillance. As C.S. Lewis noted, “there
is no foretelling what may come to seem, or even to be,
‘useful,’ and ‘necessity’ was always ‘the tyrant’s
plea.’”9
It would amaze the Framers that the
Government could employ an atextual doctrine to
circumvent judicial scrutiny of the Fourth
Amendment’s express prohibition against illegal
searches and seizures. Secrecy as to the details about
exactly how the violation was carried out cannot bar
judicial scrutiny of the violation itself.
District Judge Colleen McMahon lamented about
the impossibility of a trial judge applying rules
9
C.S. Lewis, God in the Dock: Essays on Theology and Ethics,
(Wm. B. Eerdmans Publishing Co.: 1972) (emphasis added).
16
designed by higher courts that allow the Government
to prevail in litigation simply by classifying its actions:
The Alice-in-Wonderland nature of this
pronouncement is not lost on me; but after
careful and extensive consideration, I find
myself stuck in a paradoxical situation in which
I cannot solve a problem because of
contradictory constraints and rules — a
veritable Catch-22. I can find no way around
the thicket of laws and precedents that
effectively allow the Executive Branch of our
Government to proclaim as perfectly lawful
certain actions that seem on their face
incompatible with our Constitution and laws,
while keeping the reasons for its conclusion a
secret. [New York Times Co. v. U.S. Dep’t of
Justice, 915 F. Supp. 2d 508, 515-16 (S.D.N.Y.
2013).]
Any risk to national security of potentially harmful
effects from disclosures pales in comparison to the
significant risk of allowing the Government to do
violence to the Fourth Amendment-protected property
interests of the people. Indeed, if there is a credible
national security interest to be pursued in cases such
as this, it is to preserve the security in our “persons,
houses, papers, and effects” protected by the Fourth
Amendment ban on unreasonable searches and
seizures. See Jones at 404-05.
The problem is longstanding. Dissenting from the
Court’s determination that a particular search and
seizure was reasonable, Justice Jackson charged that
17
the Supreme Court had been treating Fourth
Amendment rights as “secondary.” Brinegar v. United
States at 180 (Jackson, J., dissenting). Based on his
experience, Justice Jackson knew, and asserted, that
Fourth Amendment rights could not be disregarded,
but rather:
belong in the catalog of indispensable
freedoms. Among deprivations of rights, none
is so effective in cowing a population,
crushing the spirit of the individual and
putting terror in every heart. Uncontrolled
search and seizure is one of the first and most
effective weapons in the arsenal of every
arbitrary government. And one need only
briefly to have dwelt and worked among a
people possessed of many admirable
qualities but deprived of these rights to
know that the human personality deteriorates
and dignity and self-reliance disappear where
homes, persons and possessions are subject at
any hour to unheralded search and seizure by
the police. [Id. at 180-81 (emphasis added).]
No doubt, the object of Justice Jackson’s 1949
specific reference to his having “dwelt and worked
among a people possessed of many admirable qualities”
yet living under “arbitrary government” is
unmistakable. Justice Jackson had returned just three
years previously from several months of service as U.S.
Chief Counsel for the prosecution of Nazi war
criminals. From that experience in Germany, he
brought back with him a fresh understanding of the
significance of the Fourth Amendment to the
18
preservation of a free people. He had studied the loss
of freedom by the German people, and wrote his
Brinegar dissent to reveal the corrosive effect of a
government which does not respect the property rights
of the people.
Whitney Harris, Executive Trial Counsel to Justice
Jackson at Nuremberg, later explained how liberties
were lost in Germany: “[t]he Weimar Constitution
contained positive guarantees of basic civil rights.
Chief among these were personal freedom ...
inviolability of the home [and] secrecy of letters and
other communications....”10
However, Harris
continued, the Weimar Constitution also contained:
a special provision ... under which the Reich
President was authorized to suspend basic
civil rights “if the public safety and order in
the German Reich are considerably disturbed or
endangered....”
The morning after the [burning of the
Reichstag] Hitler obtained from [President] Von
Hindenburg the decree of the Reich President
suspending the bill of rights of the Weimar
Constitution...:
“[personal freedom ... inviolability of the
home [and] secrecy of letters and other
communications] are suspended until further
notice [and] violations of the privacy of postal,
10
W. Harris, Tyranny on Trial: The Trial of the Major German
War Criminals at the End of World War II At Nuremberg,
Germany, 1945-1946 (Southern Methodist Univ. Press: 1954), p.
45.
19
telegraphic,
and
telephonic
communications, and warrants for housesearchers, orders for confiscations as well as
restrictions on property, are also
permissible beyond the legal limits otherwise
prescribed.”
This decree made possible the seizure of
political opponents without danger of judicial
interference. It was utilized to destroy all
effective political opposition.... The voice of
the people had been stilled.
Neither
constitutional liberties nor power of government
would be returned to them under Hitler.
[Tyranny on Trial, pp. 45-47 (emphasis added).]
Justice Jackson urged the courts not to defer to the
Executive Branch with respect to Fourth Amendment
violations:
[T]he right to be secure against searches and
seizures is one of the most difficult to
protect. Since the officers are themselves
the chief invaders, there is no enforcement
outside of court. [Brinegar at 181 (Jackson,
J., dissenting) (emphasis added).]
If the FBI’s position is sustained by this Court, it
solidifies the position of civil servants as a ruling class
over those to whom they ought to be accountable: the
People of the United States — who are the sovereigns
under our constitutional republic.
20
IV. HISTORY DEMONSTRATES THAT THE
COURT CANNOT REASONABLY ASSUME
ALL ATTORNEY GENERAL CLAIMS OF
STATE SECRETS ARE VALID.
The Government asks this Court to assume the
validity of the Attorney General’s assertion of the state
secrets privilege to support dismissal of most of
Plaintiffs’ claims. See Pet. Br. at 4 (“[S]ince 2009, even
where another head of department wishes to claim the
privilege, the Department of Justice conducts a highlevel review that results in the ‘personal approval of
the Attorney General’ before it asserts the state-secrets
privilege in litigation.... These procedures serve to
ensure that the privilege is invoked only when — and
to the extent — necessary to safeguard the national
security.”).
A. The FBI Has Repeatedly Conducted
Surveillance Based on False Premises for
Political Purposes.
In many instances, it is difficult to know for certain
if reports of FBI targeting of political opponents are
accurate, but some reports appear to be highly credible.
A September 2010 report by the Office of the Inspector
General of the U.S. Department of Justice (“OIG”)
concluded: “FBI agents misled officials and the public,
violated their own policy manual, used poor judgment,
and engaged in sloppy police work when they
investigated certain left-leaning, high-profile, domestic
advocacy groups in the years immediately following
21
9/11.”11 The OIG criticized FBI surveillance of
Greenpeace, People for the Ethical Treatment of
Animals (“PETA”), and The Catholic Worker. Id. The
report found that the FBI had no reason for opening an
investigation into one surveilled PETA supporter, and
improperly classified political protests and nonviolent
civil disobedience by the other groups as “terrorist”
activities. Id. “Moreover, the OIG accused FBI
witnesses of continuing ... to thwart a full and complete
investigation into the matter by offering ‘incomplete
and inconsistent accounts of events.’” Id. More
recently, it was reported that FISA court Judge James
E. Boasberg ruled that “[m]any of the FBI’s
[surveillances of American citizens] were not legally
justified because they did not involve a predicated
criminal investigation or other proper justification for
the search, as required by law.”12
Liberal groups have complained of such activities
for years. In a 2019 article, The Intercept identified
Bush Administration political targeting: “Since 2010,
the FBI has surveilled black activists and Muslim
Americans, Palestinian solidarity and peace activists,
Abolish ICE protesters, Occupy Wall Street,
environmentalists, Cuba and Iran normalization
11
A. Cohen: “OIG: FBI Inappropriately Tracked Domestic
Advocacy Groups,” The Atlantic (Sept. 20, 2010).
12
T. Aaronson, “A Declassified Court Ruling Shows How the FBI
Abused NSA Mass Surveillance Data,” The Intercept (Oct. 10,
2019).
22
proponents, and protesters at the Republican National
Convention.”13
Nor are left-leaning groups alone in being the target
of FBI surveillance.
At a House Intelligence
Committee meeting on April 15, 2021, ranking member
Rep. Devin Nunes (R-CA) told FBI Director
Christopher Wray and other intelligence officials:
The Democrats see political benefits in
characterizing wide swaths of American citizens
particularly Republicans and conservatives as
politically suspect, politically violent and
deserving of government surveillance…. I hope
you plan on spending a reasonable amount of
time in upcoming years on activities other than
investigating conservatives and spying on
Republican presidential campaigns.14
Republicans point in particular to the FBI’s role in
the 2016-17 investigation of alleged collusion between
the 2016 Donald Trump campaign and the Russian
government, codenamed “Operation Crossfire
Hurricane.” The purpose of Crossfire Hurricane was
stated in a now-declassified memo: “to determine if
anyone in the Trump campaign is in a position to have
received information either directly or indirectly from
13
A. Speri, “The FBI has a long history of treating political
dissent as terrorism,” The Intercept (Oct. 22, 2019).
14
R. Scarborough, “Devin Nunes warns intel chiefs against
targeting Americans, ‘particularly Republicans,’” Washington
Times (Apr. 16, 2021).
23
the Russian Federation regarding the anonymous
release of information during the campaign that would
be damaging to Hillary Clinton.”15 In that operation,
the FBI designated an informant, Stefan Halper. “The
FBI urged Halper to rely on surreptitious recordings to
gather information, lie about wanting to work for the
Trump campaign and gave him questions to be asked
of those with whom he came in contact.”16
The operation came under further scrutiny after the
disclosure of a number of romantic and politically
charged text messages between agent Peter Strzok and
FBI lawyer Lisa Page. “In August 2016, within one
week of the Justice Department's decision to open the
Russia probe, Strzok sent messages to Page that said
‘F Trump’ and ‘I can protect our country at so many
levels.’ … Strzok told Page in March, ‘God Hillary
should win 100,000,000-0.’”17 Strzok’s texts only
inflamed the perception of political surveillance by the
FBI. Eventually the Bureau terminated him. “He was
fired for the damage he did to the FBI’s reputation, and
15
J. Davis, “Newly Released Docs: FBI’s Spying on Trump
Campaign Was More Wide-Ranging Than Previously Disclosed,”
Western Journal (Feb. 25, 2021).
16
“Newly Released Docs: FBI’s Spying on Trump Campaign Was
More Wide-Ranging Than Previously Disclosed,” Team Tucker
Carlson (Feb. 25, 2021).
17
D. Clark, “FBI fires agent Peter Strzok, who sent anti-Trump
texts,” NBC News (Aug. 13, 2018).
24
rightly so,” stated former FBI counterintelligence
officer Frank Figliuzzi.18
The FBI determined to surveill Trump advisor and
former Naval Officer Carter Page as a alleged Russian
agent, primarily on the basis of a dossier submitted by
former British spy Christopher Steele. It is now known
that not only was Page not a Russian agent, but that
he had served as a source providing information about
the Russians to the CIA. Yet in submitting the
required affidavit to the FISA court to surveill Page,
the Bureau made:
“significant errors.” Those “errors” included
blatant exaggerations of Steele’s proven
reliability, the failure to note that his work was
opposition research commissioned by the
Democratic National Committee even after that
became clear, the omission of the fact that
Steele himself was “desperate” to prevent
Trump’s election, and a false denial of Steele’s
contacts with the press. The FBI also neglected
to mention that people who had worked with
Steele questioned his judgment, that Steele’s
“primary sub-source” had directly contradicted
claims in his “dossier,” that Page had reported
his contact with a Russian intelligence agent to
the CIA, and that Page said he had never met
18
K. Dilanian & H. Jackson, “FBI agent who helped launch
Russia investigation says Trump was ‘compromised’,” Yahoo
(Sept. 7, 2020).
25
key figures in the purported
described by Steele.19
conspiracy
As the Bureau was preparing to file the FISA
affidavits, FBI attorney Kevin Clinesmith deliberately
falsified an email about Page. On June 15, 2017,
Clinesmith sent an email to inquire whether Page had
ever served as a CIA source in Russia. He received a
reply on June 19. Clinesmith altered the email to
include the words “not a source,” and forwarded the
altered email to his supervisor for inclusion as
supporting evidence for the Bureau’s FISA affidavit
against Page.20 On August 19, 2020, Clinesmith
pleaded guilty to “making a false statement within
both the jurisdiction of the executive branch and
judicial branch.” Id.
The FBI compounded the perception of surveillance
for political purposes when then-Director James Comey
stated that the Steele dossier was “‘not all of it or a
critical part of’” the information for the Bureau’s
affidavit seeking to surveill Page. But a review by
Inspector General Michael Horowitz concluded that the
Steele dossier in fact “‘played a central and essential
role’” in the Bureau’s affidavit. See Sullum, supra.
“‘FBI personnel fell far short of the requirement in FBI
policy that they ensure that all factual statements in a
19
J. Sullum, “The FBI’s Systematic Dishonesty,” Reason (Dec. 18,
2019).
20
“FBI Attorney Admits Altering Email Used for FISA
Application During ‘Crossfire Hurricane’ Investigation,” U.S.
Dept. of Justice (Aug. 19, 2020).
26
FISA application are
Horowitz concluded.” Id.
“scrupulously
accurate,”’
The FISA court issued an unusual rebuke to the
Bureau, and “called the FBI’s conduct ‘antithetical to
the heightened duty of candor’ that applies in such
cases.” Id. On January 10, 2020, NBC News ran an
opinion piece headlined, “FBI abuses in domestic
surveillance of the Trump campaign eerily echo Red
Scare raids.” The article explained that the FISA court
noted that “agents’ requests to spy on Page were often
based on assumptions ‘contradicted by information in
their possession.’”21 “That such transgressions ever
happened should alarm everyone concerned with civil
liberties and national security.” Id. “This is disastrous
for public trust in the FBI.” Id.
In September 2021, Special Counsel John Durham
obtained an indictment against attorney Michael
Sussmann, formerly an attorney for the DOJ, for
allegedly lying to the FBI about his ties to the Hillary
Clinton campaign.22 Sussmann met with senior FBI
General Counsel James A. Baker on September 19,
2016, to make the case to Baker that the FBI should
investigate alleged ties between the Trump campaign
and Russia. Id. Asked by Baker if he was working for
a client, Sussmann denied it. Id. In 2017, however, he
changed his story in congressional testimony, stating
21
B. Rivers, “FBI abuses in domestic surveillance of the Trump
campaign eerily echo Red Scare raids,” NBC News (Jan. 10, 2020).
22
C. Downey, “Durham Grand Jury Indicts Clinton-Linked
Attorney Involved in Russia Probe,” MSN.com (Sept. 16, 2021).
27
that he was working for an unnamed cybersecurity
expert. Id. Additionally, he billed the time spent
preparing for the meeting to the Hillary Clinton
campaign, which, along with the Democratic Party,
was a client of his law firm, Perkins Coie. 23
As FISA Judge Rosemary Collyer noted: “the
frequency with which representations made by FBI
personnel turned out to be unsupported or contradicted
by information in their possession, and with which
they withheld information detrimental to their case,
calls into question whether information contained in
other FBI applications is reliable.”24
B.
FBI
Surveillance
Agents
Have
Repeatedly Acted as Agents
Provocateurs.
Perhaps even more troubling than surveillance of
political dissenters, as occurred here, the FBI has a
long record of using confidential informants to incite
illegal activity among fringe groups. See Resp. Br. at
1. This technique benefits the FBI, allowing it to
exaggerate security threats to justify its role, and
sometimes, it allows the FBI to claim credit for
swooping in and preventing a terrorist act of which it
23
Id.; L. Bell, “Durham Indictment Indicates Real Purpose
Behind Michael Sussman’s Alleged Lies,” Newsmax (Sept. 20,
2021).
24
B. Fredericks, “FISA Court rips FBI over lack of candor in
Trump campaign eavesdropping,” New York Post (Dec. 17, 2019).
28
had detailed knowledge — because it was instigated by
its own informants.
In 2012, a federal judge dismissed most of the FBI’s
case against seven members of the right-wing Hutaree
militia group in Michigan. The FBI had planted
informants who apparently suggested violent action to
the defendants. “[FBI informant Steve] Haug
repeatedly talked to [militia member David] Stone
about building pipe bombs and getting other
sophisticated explosives. The FBI rented a warehouse
in Ann Arbor where the agent would invite him and
others to store and discuss weapons.” 25
More recently, FBI informants have been accused of
stoking talk of kidnapping Michigan Governor
Gretchen Whitmer. “Prosecutors recently revealed
that there were a dozen confidential informants
working on the case.”26 “[S]ome of the informants the
government used appeared to play a far greater role in
the plot than had been previously reported. In fact, the
informants had a hand in nearly every aspect of the
twisted machination, including its inception.” Id. One
informant “helped organize a series of cross-country
meetings with extremists,” and “paid for hotel rooms
and food as an incentive to get people to come.” Id.
Another, an Iraq War veteran, “encouraged members
25
Associated Press, “Charges dismissed in Michigan militia case,”
FoxNews (Mar. 27, 2012).
26
B. Chakraborty, “FBI informants had bigger role in Whitmer
kidnap plot than thought: report,” Washington Examiner (July 21,
2021).
29
to work with other suspects and even offered to foot the
bill to get people to and from meetings. He is also
accused of urging the alleged mastermind of the
kidnapping plot to carry it out before laying the trap
for him to be arrested.” Id. Not surprisingly, this
“information on the extent of the FBI’s involvement
has raised questions as to whether there would have
even been a conspiracy to take down the Democratic
governor without their help.” Id.
“Since 9/11, informants have increasingly not just
supplied the FBI with information, but acted as agents
provocateurs…. By far, the Muslim community has
been a disproportionate victim of agents
provocateurs.”27 According to a 2019 report:
The FBI, along with its informants, concocts
fictitious terror plots. The informants propose to
people targeted by the FBI that they participate
in the fictitious plot. Oftentimes, they exceed
mere suggestion and go to great lengths to
entice people to participate. Once people agree
to take part in the nonexistent FBI-concocted
terror scheme, they are arrested. A 2014 Human
Rights Watch report reviewing post-9/11
terrorism convictions estimated that “almost 30
percent of those cases were sting operations in
which the informant played an active role in the
underlying plot....28
27
C. Gibbons, “Still Spying on Dissent: The Enduring Problem of
FBI First Amendment Abuse,” Rights and Dissent (2019) at 14.
28
Id. at 14-15.
30
The FBI is using confidential informants to
manufacture terror plots. It is preying on
vulnerable people.29 It is providing incentives to
individuals to agree to participate in actions
they would never have taken part in without the
FBI. All of this is sinister enough. But the
overwhelming majority of these stings involve
Muslim communities. The FBI sends agents
provocateurs into these communities to fish for
potential victims.30
C. The FBI Is Not a Trusted Government
Agency.
The concern over violations of basic civil liberties by
the FBI has only intensified with each new revelation.
“In a [May 2021] letter posted to Twitter by the House
Judiciary GOP, [Republican Reps. Jim Jordan and
Andy Biggs] argued that the FBI had been ‘seriously
and systemically abusing its warrantless electronic
surveillance authority,’ and was engaged in ‘illegal
spying activities.’ Further, the two congressmen wrote
that, ‘These concerns are particularly disturbing in
light of prior misconduct thoroughly detailed by the
DOJ Office of Inspector General (OIG), suggesting a
29
Other components of the Justice Department use the same
tactic. See John Diedrich & Raquel Rutledge, “ATF uses rogue
tactics in storefront stings across nation,” Milwaukee Journal
Sentinel (Dec. 7, 2013).
30
Id. at 16.
31
pattern of abuses and deficiencies in the FBI’s FISA
processes.’”31
The FBI has earned a reputation for directly lying
to the American people, and even the FISA court. As
Judge Collyer stated in her FISA court rebuke of the
Bureau for its fabricated affidavits in the Trump
collusion investigation, “‘The frequency with which
representations made by FBI personnel turned out to
be unsupported or contradicted by information in their
possession, and with which they withheld information
detrimental to their case, calls into question whether
information contained in other FBI applications is
reliable.’”32
The FBI’s self-inflicted wounds have wrecked its
credibility with the American people.
Indeed, public support for the FBI has plunged.
A PBS NewsHour survey in April showed a 10point drop–from 71% to 61%–in the prior two
months among Americans who thought the FBI
was “just trying to do its job” and an 8-point
jump–from 23% to 31%–among those who
thought it was “biased against the Trump
Administration.”33
31
A. Thornebrooke, “GOP Reps Demand Answers After FBI
Exposed for ‘Widespread’ Surveillance Abuses,” Western Journal
(May 5, 2021).
32
33
See B. Rivers, supra.
E. Lichtblau, “The FBI Is in Crisis. It’s Worse Than You
Think,” Time (May 3, 2018).
32
Some legal experts and defense advocates see
the string of recent not guilty verdicts as a sign
that jurors and judges are less inclined to take
what the FBI says in court at face value. Data
examined by TIME support that conclusion. The
number of convictions in FBI-led investigations
dropped last year for the fifth consecutive
year–from 11,461 in 2012 to 10,232....
Moreover, TIME’s analysis shows a surprisingly
low rate of success for the thousands of cases the
FBI investigates and sends to the Justice
Department for possible prosecution. Over that
same time period, the Justice Department has
ultimately won convictions in fewer than half
the cases the FBI referred for prosecution….
[Id.]
Fox News legal analyst and contributor Gregg
Jarrett has openly called for the resignation or
termination of FBI Director Christopher Wray in the
wake of the Inspector General’s December 2019 report
detailing the agency’s deceptive reports to the FISA
Court. “Under Wray, promises of transparency and
reform proved to be nothing more than an illusion,
replaced by a deliberate cover-up of FBI
malfeasance…. Americans are right to be fearful of the
FBI. The agency’s chronic abuses of law and process …
present a frightening example of how power
corrupts…. It is time for Wray to go —one way or
another.”34
34
G. Jarrett, “Gregg Jarrett: Flynn cover-up — FBI’s Wray must
go. Americans need director they can trust,” Fox News (May 5,
33
The Cliven Bundy case in Nevada resulted in yet
another judicial rebuke of the FBI:
Federal judge Gloria Navarro slammed the FBI
and Justice Department on Monday, Jan. 8, for
“outrageous abuses” and “flagrant misconduct”
in the prosecution of Cliven Bundy and sons, the
Nevada ranchers who spurred a high-profile
standoff with the FBI and Bureau of Land
Management in 2014. Navarro condemned the
“grossly shocking” withholding of evidence from
defense counsel in a case that could have landed
the Bundys in prison for the rest of their lives.
Navarro, who had declared a mistrial last
month, dismissed all charges against the
Bundys. Navarro was especially riled because
the FBI spent three years covering up or lying
about the role of their snipers in the 2014
standoff.35
Then in 2019, after the discovery of the FBI’s false
affidavits to the FISA Court stating that Carter Page
was a Russian agent, Judge Rosemary Collyer wrote “a
blistering order [that] accused the bureau of providing
false information and withholding materials….”36
“‘The FBI’s handling of the Carter Page applications,
2020).
35
J. Bovard, “Fed’s misconduct in Cliven Bundy case stems from
Ruby Ridge,” The Hill (Jan. 14, 2018).
36
J. Kruzel, “Judge blasts FBI over misleading info for
surveillance of Trump campaign adviser,” The Hill (Dec. 17, 2019).
34
as portrayed in the OIG report, was antithetical to the
heightened duty of candor…’” the judge wrote. Id.
Criticism of the FBI is not limited to the left and
the right — it has gone mainstream. Just one week
ago, on September 21, 2021, the Wall Street Journal
Editorial Page rang out with a call to: “Abolish the
FBI.”37 The last straw that led to this op-ed by Holman
Jenkins of the editorial board, was special counsel
John Durham’s indictment of “Michael Sussmann, then
a lawyer for the Democrat-linked firm Perkins Coie.”
In delivering to the FBI fanciful evidence of
Trump-Russia collusion a few weeks before the
2016 election, Mr. Sussmann is alleged to have
lied to the FBI’s chief lawyer, James Baker,
claiming he was acting on his own behalf and
not as a paid agent of the Clinton campaign....
Mr. Durham provides ample reason in his
own indictment for why the FBI would have
known exactly whom Mr. Sussmann was
working for.... [W]e are free to suspect the FBI
would have found it useful to be protected from
inconvenient knowledge about the Clinton
campaign’s role.
Yet to date, the FBI is almost never held
accountable for anything. Twenty-nine years ago FBI
sniper Lon Horiuchi shot Vicky Weaver in the face at
Ruby Ridge, Idaho, while she was holding her baby.
“The FBI initially claimed that killing Mrs. Weaver
37
H.W. Jenkins, Jr., “Abolish the FBI,” Wall Street Journal (Sept.
21, 2021).
35
was justified and then later covered up key details and
claimed it was accidental. FBI chief Louis Freeh
pretended his agents had done nothing seriously
wrong.... [T]he feds paid a $3 million wrongful death
settlement to the Weaver family.”38 “When an [FBI]
agent ... was indicted for murder by an Idaho
prosecutor ... [t]he Solicitor General of the United
States urged the courts to dismiss the indictment
because, ‘these federal law enforcement officials are
privileged to do what would otherwise be unlawful if
done by a private citizen.’”39
The Wall Street Journal op-ed cited supra,
concludes its long train of offenses with the following:
By now, after its performance in the 2016
election, the evidence might seem conclusive
that the agency is a failed experiment,
however able and dedicated many of its agents.
Its culture at the top seems incapable of
using the powers entrusted to it with
discretion and good judgment or at least
without reliable expectation of embarrassment.
The agency should be scrapped and something
new built to replace it. [Emphasis added.]
Agencies cannot be trusted to assert the state
secrets privilege without skeptical judicial oversight,
38
J. Bovard, “Ruby Ridge and the FBI License to Kill”
JimBovard.com (Aug. 22, 2021).
39
T. Lynch, edt., In the Name of Justice (CATO Institute: 2009)
at xxvi (citation omitted).
36
especially those
judgment.”
without
“discretion
and
good
CONCLUSION
For the reasons set forth in the Respondents’ Brief,
and those above, the Court should affirm the decision
of the Court of Appeals.
Respectfully submitted,
PATRICK M. MCSWEENEY
ROBERT J. CYNKAR
CHRISTOPHER I. KACHOUROFF
MCSWEENEY, CYNKAR
& KACHOUROFF, PLLC
3358 John Tree Hill Rd.
Powhatan, VA 23139
patrick@mck-lawyers.com
WILLIAM J. OLSON*
JEREMIAH L. MORGAN
ROBERT J. OLSON
WILLIAM J. OLSON, P.C.
370 Maple Ave. W., Ste. 4
Vienna, VA 22180
(703) 356-5070
wjo@mindspring.com
*Counsel of Record
RICK BOYER
INTEGRITY LAW FIRM, PLLC
P.O. Box 10953
Lynchburg, VA 24506
JAMES N. CLYMER
CLYMER, MUSSER
& SARNO, P.C.
408 W. Chestnut St.
Lancaster, PA 17603
September 28, 2021
Attorneys for Amici Curiae
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