For the second time in two months, the US government on Monday called on the Supreme Court to invoke “state secrets” to protect it from allegations of wrongdoing – in this case, a secret recording of Muslims who gathered for prayer at an Orange County mosque.
A Justice Department prosecutor said the court should dismiss a 10-year-old lawsuit alleging Muslims were under secret surveillance because of their faith, a violation of the freedom of religion protected by the constitution.
According to Deputy Solicitor General Edwin Knidler, the decision on the lawsuit should not be considered by a judge or jury, as national security would be in jeopardy if the FBI had to explain why it began to spy on the Islamic center in Irvine.
But his argument met with skepticism around the world that shared the usual ideological section of the court, from Judges Neil M. Gorsuch and Amy Coney Barrett on the right to Judges Sonia Sotomayor and Stephen J. Breuer on the left.
For much of the two-hour dispute, the judges debated whether to send the case back to California for further hearings in the 9th Circuit Court of Appeals in San Francisco or before US District Judge Cormac J. Carney in Orange County.
Typically, the government will file a state secret claim if a lawsuit or legal action could reveal a military secret or expose a spy working for the United States.
The case differs in that it involves domestic surveillance of Americans, said UCLA law professor Achilan Arulanantam, representing Yasser Fazagh and two other Muslims who are suing the FBI and several of his agents.
He noted that in 1978, Congress passed the Foreign Intelligence Tracking Act, which lays down rules to allow judges to decide behind closed doors whether the FBI has a good reason for wiretapping or otherwise spying on people to gather intelligence.
He said that instead of closing the case, the court should order the district judge to examine the FBI evidence before deciding whether to proceed with the trial.
The 9th Circuit Court has largely adopted this view of the law as a means of balancing investigators ‘need for safety and the plaintiffs’ right to hold the government accountable for constitutional violations.
But last December, in the final weeks of Trump’s rule, the Justice Department challenged the FBI’s case against Fazagi and called on the high court to overturn the 9th District’s ruling and dismiss the suit.
This position also reflected the views of the Obama administration and the then Atti. General Eric Holder, who in 2011 filed for blocking the lawsuit because it could threaten national security. The Biden administration now takes the same view.
In many cases of alleged illegal tracking, targets have difficulty proving that they were spied on by the government. This case differs in that the FBI informant eventually sided with the plaintiffs.
The case began when the FBI hired Craig Monteil and paid him to pretend to be converted to Islam. In 2006 and 2007, he recorded thousands of hours of conversations and compiled names and phone numbers.
When he started talking in the mosque about the violent jihad, several Muslim men reported him to the FBI.
After his story was revealed, Montey broke up with the FBI and collaborated with the ACLU in bringing the lawsuit.
“We have all the evidence we need,” Arulanantam told the court.
Catherine Carroll, an attorney representing FBI officials who have been separately sued for their role, said it would be unfair to them if the grounds for surveillance were kept secret.
She said the court should uphold an earlier ruling by Judge Carney, who said classified information presented to him showed that “the alleged dragnet investigation was not an indiscriminate targeting of Muslims, but was properly planned and focused.”
Both state secret cases pending in court arose years after the 9/11 attacks. The George W. Bush administration has demanded that information be collected from suspected terrorists captured abroad and potential conspiracies in that country uncovered.
Last month, the Justice Department called on the court to bar two former CIA contractors from testifying to a Polish tribunal about the torture of Abu Zubaydah, a Palestinian mistakenly believed to be a close ally of Osama bin Laden.
It was well known that Zubaida was subjected to water torture and other ill-treatment, but US prosecutors argued that it remained partly a guarded secret because the government did not acknowledge that he was being held in a “black place” in Poland.