The Supreme Court on Monday explores, for the second time in the current term, the government’s power to prevent disclosure of “state secrets.” In a second hearing, the Justices will examine when the holder of a copyright on an original creation can lose its official recognition by the federal government. The “live” audio of the two hearings can be heard at the Quick Links on the Court’s homepage – supremecourt.gov – and on c-span.org/supremecourt and at C-Span Now App.
First case: FBI v. Fazaga (The hearing starts at 10 a.m. and is scheduled for 80 minutes.)
Background: The nation’s courts continue to work through the legal consequences of the federal government’s “war on terror,” waged after the terrorist attacks on the United States on September 11, 2001. Part of the emphasis has been on the legality of using secret electronic devices aimed at individuals or groups suspected of terrorist acts or plots.
The Court, during its current term, already is reviewing another state-secrets issue: what must be disclosed about torture of terrorist suspects by U.S. agents at secret overseas sites? A discussion of that case can be found at this link: Supreme Court: Torture and the Veil of Secrecy (lyldenlawnews.com)
The new case to be heard tomorrow was taken to the Court by the FBI, seeking to head off possible revelation of secrets about its monitoring of Muslim men in California a few years after 9/11.
Inevitably, when a person or group targeted by electronic surveillance challenges its legality, there is a risk that court review could result in disclosure of government secrets – such as who was monitored and why, what methods or devices were used, how they were used, what information was swept up, how does the government plan to use that information?
Generally speaking, federal law and the Constitution allow the government to use electronic spying, such as wiretapping or secret photography, on people living in the U.S., but only if permission has been given by a court. When the government is seeking information about foreign threats to the U.S., federal law does not allow electronic monitoring of people inside this country unless the governments can show that those individuals are acting as agents of a foreign power.
A law first passed in 1978, the Foreign Intelligence Surveillance Act, makes it clear that the focus of such monitoring must be foreign, not domestic, threats to the U.S. The Act sets up a complex scheme for the government to seek permission — from a highly-secret, special court — to conduct such surveillance.
The Act provides that individuals who were monitored by secret cameras or other recording devices must be told when the government plans to use what it has gathered, so that the targeted individuals can try to challenge the legality of the surveillance. The government might use such information offensively – say, to prosecute someone for a crime – or defensively, to answer a court challenge to the legality of the monitoring.
This case involves the second situation, answering a lawsuit by private individuals who were targeted.
Between 2006 and 2007, FBI agents – acting through a secret informant they had recruited – carried out extensive electronic monitoring on Muslim men in at least eight Islamic mosques in southern California, with a special focus on mosques in Mission Viejo and Irvine. The monitoring had the code name “Operation Flex,” and was carried out under broad instructions to check for possible terrorist plots among Muslims.
Spending a lot of time in activities at mosques, and using such devices as a small camera hidden in a button on his shirt, the informant recorded almost all of his encounters with Muslims. The operation began to fall apart early in 2007, when the identity of the informant was revealed unexpectedly.
When three of the Muslim men – Yassir Fazaga, Ali Uddin Malik and Yasser Abdelrahim – learned that they had been targeted, they filed a sweeping lawsuit against the FBI, FBI supervisors and agents. They claimed violations of their religious and privacy rights under the Constitution and under federal laws. They sought money damages as well as court orders to destroy or return any information about them.
The federal government, arguing that most of the claims risked the disclosure in court of secrets about
“Operation Flex,” claimed the “state-secrets privilege.” That is a legal phenomenon, dating in America back to the early 1800s, that seeks to protect secret military and other sensitive information from disclosure in court. It is not written down in any specific statute; rather, it has developed through custom and tradition – that is, as “common law.” The government can claim it to try to exclude specific pieces of legal evidence, or to try to shut down a lawsuit altogether, to protect secrets.
The privilege, though broad in nature, does not always work in the government’s favor. As a feature of the common law, it can be displaced if Congress passes a specific law dealing with the same circumstances. In this case, such a law is at issue: a section of the 1978 Foreign Intelligence Surveillance Act, giving federal judges the authority to weigh behind closed doors whether to allow the government to claim the secrecy privilege.
A federal trial judge, overseeing the three Muslim men’s lawsuit against “Operation Flex,” dismissed all of the claims against the government, its officials and agents after the Justice Department asserted the privilege. A federal appeals court, however, ruled that the trial judge went too far in dismissing all of the claims, and instructed the judge to examine in private whether the FBI had properly obtained permission under the 1978 Act. To make that decision, the judge would have to examine the very evidence that the government had said would put secrets at risk. The FBI took the issue on to the Supreme Court.
The question before the Court: Does the 1978 law displace the state-secrets privilege by authorizing a federal judge to rule on the legality of secret electronic surveillance by reviewing – in private — the evidence the government wants kept secret?
Significance: The federal government’s post-9/11 “war on terror” has proven to be a deeply serious – and ongoing — test of the role of secret government operations in a society that prides itself on its openness and its respect for individual rights. The government, though, generally has an advantage when the courts are drawn into disputes over such secrecy.
The federal courts, including the Supreme Court, routinely allow the government very wide discretion in the field of national security. The courts usually defer because they sense that the capacity to weigh national defense requirements is far greater in the Executive Branch than in the Judiciary.
But, as this case shows, the courts from time to time recognize that Congress, too, is competent to deal with national security issues. The 1978 law dealing with foreign intelligence surveillance, in fact, was enacted by Congress as a direct response to abuses by U.S. intelligence agencies in the 1960s in spying on Americans. A wide-ranging investigation in 1975 by the so-called “Church Committee” (named for Idaho Senator Frank Church, the Democratic chairman of the committee) exposed those abuses.
In the “Operation Flex” case, the federal government is taking the position that the section of the 1978 law relied upon by the federal appeals court to displace the state-secrets privilege does not even apply when secret spying is being challenged by individuals or groups targeted by the surveillance. The act, it contends, only applies when the government itself initiates the court case involving secret evidence. When the government is defending itself in court, it says, the state-secrets privilege governs.
The federal appeals court answered that broad claim by summing up its lengthy opinion in just a few words: “The plain text and statutory structure [of the 1978 Act] provide otherwise.” For the conservative majority on the Supreme Court, which often argues that courts should base their rulings on the meaning of federal laws by sticking close to the text chosen by Congress, the “Operation Flex” case could be a real test.
Beyond the question of what the 1978 law means, the federal government is attempting to buttress its appeal by urging the Court to provide a firm constitutional basis for the state-secrets privilege. Prior precedents hint at such a basis, but the government is pressing it more energetically here.
An interesting facet of the case is that the five individual FBI agents who were sued will be given time at Monday’s hearing for their lawyer to present arguments that do not exactly track those made by the federal government’s lawyers. The agents argue that they may not be able to defend themselves against a damages award, which they would have to pay, if all of the secret data is kept out of the case.
Second case: Unicolor Inc. v. H&M Hennes & Mauritz (The hearing, scheduled for 70 minutes, will begin after the finish of the state-secrets hearing.)
Background: The Constitution in various ways provides protection for property rights, through such vague clauses as the one assuring that there must be “due process” of law before the government can take away private property. It also requires “just compensation” (what is “just” is not defined) if the government takes private property for government use.
But the Constitution is very specific in assuring legal protection for “intellectual property” – that is, original creations in literature, the arts, and commercial activity. Congress is given direct authority to pass laws giving “authors and inventors” an “exclusive right to their writings and discoveries,” at least for a period of years. The protection takes the form of officially recognized copyrights and patents.
The case being heard Monday involves copyright law. When the creator of a written item or the design of an item is able to obtain the protection of a copyright, that assures an exclusive right for years to market that creation – in other words, a right not to have the creation copied by others.
While copyright protection is understood to exist at the moment of a creative act, it helps to enforce the exclusive right to that creation by registering it with the Copyright Office. Registration enhances the commercial value of the creation, and registration is also important because the copyright holder is not allowed to sue someone for copying (that is, for infringing) the protected creation if it has not first been registered. Infringement lawsuits are the main shield for the copyright.
In this case, a Los Angeles firm, Unicolors, Inc., in 2011 created a fabric design consisting of horizonal lines of varying geometric patterns. It registered the copyright in 2014. Later, it discovered that a retail store chain, H&M Hennes & Mauritz, was selling garments, such as sweaters, using a very similar design. Unicolors sued for infringement of its copyright, and a jury assessed damages of $846,720 against H&M.
H&M, at the trial and later in an appeal of the jury verdict, contended that Unicolors’ copyright registration was invalid because of misstatements it had made when it sought registration of the design. A 2008 copyright law passed by Congress provides that a copyright registration can be nullified if it was obtained by fraud or bad faith. A federal appeals court ruled, however, that proof of fraud is not necessary; it is sufficient, it decided, if misstatements were made and the copyright holder knew they were wrong. In that situation, that court said, the Copyright Office must be asked to consider voiding the registration.
Unicolors, asserting that the appeals court ruling makes it too easy to void copyright registrations, took the case to the Supreme Court. Lower federal courts are split on the legal issue. The federal government is supporting Unicolors’ legal position.
The question before the Court: Must there be proof of fraud or bad faith before the Copyright Office must be asked to void a copyright registration?
Significance: Because copyrights are of such importance in encouraging creative activity and are so valuable in the commercial world, it is important that the law be applied the same way across the nation. The disagreement among lower courts on the question in this case can frustrate that goal, making the meaning of the law vary between geographic areas.
On Tuesday, the Supreme Court will hold hearings in two cases: first, on the constitutionality of treating the people of Puerto Rico less favorably in access to federal financial benefits, and, second, on the plea of a Death Row inmate for a right to have his pastor with him to pray and touch him during the execution. The two cases will be discussed in this space tomorrow.