FEDERAL BUREAU OF INVESTIGATION et al. v. FAZAGA et al.
Certiorari To The United States Court Of Appeals For The Ninth Circuit
No. 20–828. Argued November 8, 2021—Decided March 4, 2022
Respondents Yassir Fazaga, Ali Malik, and Yasser Abdel Rahim, members of Muslim communities in California, filed a putative class action against the Federal Bureau of Investigation and certain Government officials, claiming that the Government subjected them and other Muslims to illegal surveillance under the Foreign Intelligence Surveillance Act of 1978 (FISA). FISA provides special procedures for use when the Government wishes to conduct foreign intelligence surveillance. Relevant here, FISA provides a procedure under which a trial-level court or other authority may consider the legality of electronic surveillance conducted under FISA and order specified forms of relief. See 50 U. S. C. §1806(f). The Government moved to dismiss most of respondents’ claims under the “state secrets” privilege. See, e.g., General Dynamics Corp. v. United States, 563 U. S. 478. After reviewing both public and classified filings, the District Court held that the state secrets privilege required dismissal of all respondents’ claims against the Government, except for one claim under §1810, which it dismissed on other grounds. The District Court determined dismissal appropriate because litigation of the dismissed claims “would require or unjustifiably risk disclosure of secret and classified information.” 884 F. Supp. 2d 1022, 1028–1029. The Ninth Circuit reversed in relevant part, holding that “Congress intended FISA to displace the state secrets privilege and its dismissal remedy with respect to electronic surveillance.” 965 F. 3d 1015, 1052.
Held: Section 1806(f) does not displace the state secrets privilege. Pp. 7–13.
(a) The case requires the Court to determine whether FISA affects the availability or scope of the long-established “Government privilege against court-ordered disclosure of state and military secrets.” General Dynamics Corp., 563 U. S., at 484. Congress enacted FISA to provide special procedures for use when the Government wishes to conduct foreign intelligence surveillance in light of the special national-security concerns such surveillance may present. See Clapper v. Amnesty Int’l USA, 568 U. S. 398, 402. When information is lawfully gathered pursuant to FISA, §1806 permits its use in judicial and administrative proceedings but specifies procedures that must be followed before that is done. Subsection (f) of §1806 permits a court to determine whether information was lawfully gathered “in camera and ex parte” if the “Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States.” §1806(f).
Central to the parties’ argumentation in this Court, and to the Ninth Circuit’s decision below, is the correct interpretation of §1806(f). The Ninth Circuit’s conclusion that Congress intended FISA to displace the state secrets privilege rested in part on its conclusion that §1806(f)’s procedures applied to this case. The Government contends that the Ninth Circuit erred because §1806(f) is a narrow provision that applies only when an aggrieved person challenges the admissibility of surveillance evidence. Respondents interpret §1806(f) more broadly, arguing that it also can be triggered when a civil litigant seeks to obtain secret surveillance information, as respondents did here, and when the Government moves to dismiss a case pursuant to the state secrets privilege. The Court does not resolve the parties’ dispute about the meaning of §1806(f) because the Court reverses the Ninth Circuit on an alternative ground. Pp. 7–9.
(b) Section 1806(f) does not displace the state secrets privilege, for two reasons. Pp. 9–13.
(1) The text of FISA weighs heavily against the argument that Congress intended FISA to displace the state secrets privilege. The absence of any reference to the state secrets privilege in FISA is strong evidence that the availability of the privilege was not altered when Congress passed the Act. Regardless of whether the state secrets privilege is rooted only in the common law (as respondents argue) or also in the Constitution (as the Government argues), the privilege should not be held to have been abrogated or limited unless Congress has at least used clear statutory language. See Norfolk Redevelopment and Housing Authority v. Chesapeake & Potomac Telephone Co. of Va., 464 U. S. 30, 35; Jennings v. Rodriguez, 583 U. S. __, __. P. 9.
(2) Even on respondents’ interpretation of §1806(f), nothing about the operation of §1806(f) is incompatible with the state secrets privilege. Although the Ninth Circuit and respondents view §1806(f) and the privilege as “animated by the same concerns” and operating in fundamentally similar ways, that is simply wrong. As an initial matter, it seems clear that the state secrets privilege will not be invoked in the great majority of cases in which §1806(f) is triggered. And in the few cases in which an aggrieved party, rather than the Government, triggers the application of §1806(f), no clash exists between the statute and the privilege because they (1) require courts to conduct different inquiries, (2) authorize courts to award different forms of relief, and (3) direct the parties and the courts to follow different procedures.
First, the central question for courts to determine under §1806(f) is “whether the surveillance of the aggrieved person was lawfully authorized and conducted.” By contrast, the state secrets privilege asks whether the disclosure of evidence would harm national security interests, regardless of whether the evidence was lawfully obtained.
Second, the relief available under the statute and under the privilege differs. Under §1806, a court has no authority to award any relief to an aggrieved person if it finds the evidence was lawfully obtained, whereas a court considering an assertion of the state secrets privilege may order the disclosure of lawfully obtained evidence if it finds that disclosure would not affect national security. And under respondents’ interpretation of §1806(f), a court must award relief to an aggrieved person against whom evidence was unlawfully obtained, but under the state secrets privilege, lawfulness is not determinative. Moreover, the potential availability of dismissal on the pleadings pursuant to the state secrets privilege shows that the privilege and §1806(f) operate differently.
Third, inquiries under §1806(f) and the state secrets privilege are procedurally different. Section 1806(f) allows “review in camera and ex parte” of materials “necessary to determine” whether the surveillance was lawful. Under the state secrets privilege, however, examination of the evidence at issue, “even by the judge alone, in chambers,” should not be required if the Government shows “a reasonable danger that compulsion of the evidence” will expose information that “should not be divulged” in “the interest of national security.” United States v. Reynolds, 345 U. S. 1, 10. Pp. 9–13.
(c) This decision answers the narrow question whether §1806(f) displaces the state secrets privilege. The Court does not decide which party’s interpretation of §1806(f) is correct, whether the Government’s evidence is privileged, or whether the District Court was correct to dismiss respondents’ claims on the pleadings. P. 13.
965 F. 3d 1015, reversed and remanded.
Alito, J., delivered the opinion for a unanimous Court.
UNITED STATES v. TSARNAEV
Certiorari To The United States Court Of Appeals For The First Circuit
No. 20–443. Argued October 13, 2021—Decided March 4, 2022
On April 15, 2013, brothers Dzhokhar and Tamerlan Tsarnaev planted and detonated two homemade pressure-cooker bombs near the finish line of the Boston Marathon, killing three and wounding hundreds. Three days later, as investigators began to close in, the brothers fled. In the process, they murdered a Massachusetts Institute of Technology campus police officer, carjacked a graduate student, and fought a street battle with police during which Dzhokhar inadvertently ran over and killed Tamerlan. Dzhokhar eventually abandoned the vehicle and hid in a covered boat being stored in a nearby backyard. He was arrested the following day.
Dzhokhar was indicted for 30 crimes, including 17 capital offenses. To prepare for jury selection, the parties proposed a 100-question screening form, which included several questions regarding whether media coverage may have biased prospective jurors. The District Court declined to include a proposed question that asked each prospective juror to list the facts he had learned about the case from the media and other sources. According to the District Court, the question was too “unfocused” and “unguided.” Following three weeks of in-person questioning, a jury was seated. The jury found Dzhokhar guilty on all counts, and the Government sought the death penalty.
At sentencing, Dzhokhar sought mitigation based on the theory that Tamerlan had masterminded the bombing and pressured Dzhokhar to participate. In an attempt to show Tamerlan’s domineering nature, Dzhokhar sought to introduce the statements of Ibragim Todashev, who had alleged during an FBI interview that, years earlier, Tamerlan had participated in a triple homicide in Waltham, Massachusetts. The Government asked the trial court to exclude any reference to the Wal tham murders on the grounds that the evidence either lacked relevance or, alternatively, lacked probative value and was likely to confuse the issues. The Government also pointed out that, because FBI agents had killed Todashev in self-defense after he attacked them during the interview, there were no living witnesses to the Waltham murders. The District Court excluded the evidence, and the jury concluded that 6 of Dzhokhar’s crimes warranted the death penalty.
The Court of Appeals vacated Dzhokhar’s capital sentences on two grounds. First, the court held that the District Court abused its discretion during jury selection by declining to ask about the kind and degree of each prospective juror’s media exposure, as required by that court’s decision in Patriarca v. United States, 402 F. 2d 314. Second, the court held that the District Court abused its discretion during sentencing when it excluded evidence concerning Tamerlan’s possible involvement in the Waltham murders.
Held: The Court of Appeals improperly vacated Dzhokhar’s capital sentences. Pp. 8–20.
(a) The District Court did not abuse its discretion by declining to ask about the content and extent of each juror’s media consumption regarding the bombings. Jury selection falls “particularly within the province of the trial judge,” Skilling v. United States, 561 U. S. 358, 386, whose broad discretion in this area includes deciding what questions to ask prospective jurors, see Mu’Min v. Virginia, 500 U. S. 415, 427. Here, the District Court did not abuse that discretion when, recognizing the significant pretrial publicity concerning the bombings, the court refused to allow the question at issue because it wrongly emphasized what a juror knew before coming to court, rather than potential bias. That decision was reasonable and well within the court’s discretion.
The rest of the jury-selection process in this case dispels any remaining doubt. The District Court used the 100-question juror form—which asked prospective jurors what media sources they followed and whether any of that information had caused them to form an opinion about Dzhokhar’s guilt or punishment—to cull down the number of prospective jurors. The District Court then subjected those remaining prospective jurors to three weeks of individualized voir dire, including questions that probed for bias. Finally, the court instructed the prospective jurors during voir dire, and the seated jurors during trial, that their decisions must be based on the evidence presented at trial and not any other source.
The Court of Appeals erred when it concluded that the District Court abused its discretion by failing to put Dzhokhar’s proposed media-content question to the jury. Following its decision in Patriarca, the court concluded that it had “supervisory authority” to require the District Court, as a matter of law, to ask the jurors that specific question. The supervisory power of federal courts, however, does not extend to the creation of prophylactic supervisory rules that circumvent or supplement legal standards set out in decisions of this Court. See United States v. Payner, 447 U. S. 727, 733–737. Pp. 8–13.
(b) Nor did the District Court abuse its discretion in excluding from the sentencing proceedings evidence of the Waltham murders. The Federal Death Penalty Act provides that, at the sentencing phase of a capital trial, “information may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor.” 18 U. S. C. §3593(c). But the district court may exclude information “if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.” Ibid. Such evidentiary decisions are reviewed for abuse of discretion. See United States v. Abel, 469 U. S. 45, 54. Here, Dzhokhar sought to introduce evidence linking Tamerlan to the unsolved Waltham murders to support his mitigation defense that Tamerlan was the ringleader of the bombing. That evidence, however, did not allow the jury to confirm or assess Tamerlan’s alleged role in the Waltham murders. The District Court did not abuse its discretion when it reasonably excluded the evidence for its lack of probative value and potential to confuse the jury.
Dzhokhar’s counterarguments are unconvincing. First, §3593(c) does not violate the Eighth Amendment. That provision falls well within the the Federal Government’s “ ‘traditional authority’ ” “to decide that certain types of evidence may have insufficient probative value to justify their admission,” Skipper v. South Carolina, 476 U. S. 1, 11, 15 (Powell, J., concurring in judgment), and “to set reasonable limits upon the evidence a [capital] defendant can submit, and control the manner in which it is submitted,” Oregon v. Guzek, 546 U. S. 517, 526. Section 3593(c) sets up a highly permissive regime that allows criminal defendants to introduce a wide range of normally inadmissible evidence and channels that evidence through an individualized balancing test that affords a capital defendant every reasonable opportunity to place relevant mitigation evidence before the penalty-phase jury. Here, the bare inclusion of the Waltham-murders evidence risked producing a confusing mini-trial where the only witnesses who knew the truth were dead. That the evidence excluded by the District Court was considered reliable enough to include in a search warrant has no bearing here, where the District Court was free to evaluate the information independently when deciding whether to admit it under §3593(c).
The dissent recognizes that the District Court enjoyed significant discretion over its evidentiary decisions. But because this is a death penalty case, the dissent scrutinizes those decisions with particular care to find that the District Court abused its discretion. In doing so, the dissent ignores the traditional abuse-of-discretion standard, which calls for a reviewing court to defer to the sound judgment of a district court unless the decision was “manifestly erroneous.” General Elec. Co. v. Joiner, 522 U. S. 136, 142. More specifically, the dissent suggests that a district court presiding over death-penalty proceedings should be more hesitant to find that evidence risked confusing the jury. But nothing in §3593(c) suggests that Congress intended for any such hesitancy. Ultimately, the District Court reasonably decided to exclude the evidence under §3593(c)’s balancing test. Pp. 13–20.
968 F. 3d 24, reversed.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Barrett, J., filed a concurring opinion, in which Gorsuch, J., joined. Breyer, J., filed a dissenting opinion, in which Kagan, J., joined, and in which Sotomayor, J., joined except as to Part II–C.