In an amicus brief filed in the U.S. Supreme Court on September 28, 2021, Sharon Bradford Franklin, Co-Director of CDT’s Security and Surveillance Project, and CDT alum Jim Dempsey, urge the Court to recognize the critical importance of oversight conducted by federal courts. The amicus brief was filed in FBI v. Fazaga, in which Muslim Americans in California challenge FBI surveillance against them on the grounds that the FBI improperly targeted them on the basis of their religion. The Supreme Court will consider whether, despite the government’s assertion of the state secrets privilege, Section 1806(f) of the Foreign Intelligence Surveillance Act (FISA) enables the federal district court to consider the evidence (in camera — or in private) and allow the case to proceed. CDT has previously argued that Section 1806(f) of “FISA displaces the state secrets privilege in electronic surveillance cases.”
From 2012 to 2017, Dempsey served as a member of the Privacy and Civil Liberties Oversight Board (PCLOB), and from 2013 to 2017, Franklin served as the PCLOB’s executive director. The PCLOB is an independent agency that conducts both classified and public oversight of federal counterterrorism programs to ensure they have adequate safeguards for privacy and civil liberties. The Fazaga amicus brief was filed on behalf of Dempsey and Franklin as former government officials and urges that:
All three branches of government are essential in the review of sensitive national security cases when individual civil liberties are involved. In particular, adversarial proceedings in the district courts fill a gap. . . . Amici have personal experience with conducting oversight within the executive branch. In their experience, the oversight structures within the executive branch, while robust and indispensable, are not sufficient to curb executive overreach, particularly in the complex and highly fact-dependent context of electronic surveillance.
The brief further outlines the extensive experience of federal courts in reviewing classified and other sensitive information. The Supreme Court will hear oral argument in the case on November 8, 2021.