For the second time in two months, the U.S. government on Monday called on the Supreme Court to invoke “state secrets” to protect it from allegations of misconduct – in this case the secret recording of Muslims gathered for prayer at a mosque in Orange County.
A Justice Department lawyer said the court should dismiss a 10-year-old lawsuit claiming Muslims were targets of secret surveillance because of their faith, a violation of the religious freedom protected by the constitution.
The claim should not be decided before a judge or jury, Deputy Attorney General Edwin Kneedler said, because national security would be in jeopardy if the FBI were to explain why it began spying on an Islamic center in Irvine.
But his argument ran into skepticism across the court’s usual ideological boundaries, from judges Neil M. Gorsuch and Amy Coney Barrett on the right to judges Sonia Sotomayor and Stephen G. Breyer on the left.
In much of the two-hour-long arguments, the judges discussed whether to send the case back to California for further hearings at the 9th Court of Appeals in San Francisco or for U.S. District Judge Cormac J. Carney in Orange County.
Typically, the government raises a state secrecy claim if a lawsuit or lawsuit could reveal a military secret or expose a spy working for the United States.
This case is different because it involves domestic surveillance of U.S. individuals, said UCLA law professor Ahilan Arulanantham, who represents Yassir Fazaga and two other Muslim men who sued the FBI and several of its agents.
He noted that in 1978 Congress passed the Foreign Intelligence Surveillance Act, which sets rules for judges behind closed doors to decide whether the FBI had good reason to eavesdrop on telephones or otherwise spy on people to gather intelligence.
Instead of dismissing the case, he said the court should order the district judge to examine the FBI’s evidence before deciding whether to continue the trial.
The 9th Circuit Court largely adopted this view of the law as a means of balancing the investigators ‘need for security and the plaintiffs’ right to hold the government accountable for violating the Constitution.
But in December last year, in the final weeks of the Trump administration, the Justice Department appealed the case of the FBI vs. Fazaga, and called on the High Court to overturn the decision of the 9th District and dismiss the trial.
That position also represented the views of the Obama administration and then-Atty. Gen. Eric Holder, who in 2011 filed a statement blocking the case because it could threaten national security. The Biden administration has now reiterated the same view.
In many cases of alleged illegal surveillance, targets have difficulty proving that they were spied on by the government. This case is different because the FBI informant joined the plaintiffs’ side.
The case began when the FBI hired Craig Monteilh 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 violent jihad, several of the Muslim men reported him to the FBI.
After his story was revealed, Monteilh broke with the FBI and collaborated with the ACLU to bring the lawsuit.
“We have all the evidence we need,” Arulanantham told the court.
Catherine Carroll, a lawyer representing FBI officials who were sued separately for their role, said it would be unfair to them if the basis of surveillance remained secret.
She said the court should uphold an earlier ruling by Judge Carney, who said the classified information presented to him showed that “the alleged dragnet investigations were not arbitrary schemes to target Muslims, but were correctly predicted. and focused. “
Both of the state secret cases now before the court arose in the years following the 9/11 attacks. The George W. Bush administration had been pushing to gather information from alleged terrorists captured abroad and to uncover potential plans in that country.
Last month, the Justice Department called on the court to block two former CIA investigators from testifying in a Polish court about the torture of Abu Zubaydah, a Palestinian man mistakenly believed to be a close ally of Osama bin Laden.
Waterboarding and other brutal treatment inflicted on Zubaydah was well known, but U.S. lawyers argued that it remained in part a protected secret because the government had not admitted that he was being held in a “black spot” in Poland.
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