Washington — The Supreme Court on Monday grappled with whether to allow a case brought by three Muslim men against the FBI to proceed, with the men arguing the federal government targeted them and their Southern California community for surveillance based on their religion.
Across arguments spanning more than two hours, the justices seemed likely to issue a narrow ruling in the case known as FBI v. Fazaga, with some expressing concerns about the leeway the federal government has in keeping information from public view by invoking national security. A federal appeals court allowed claims brought by the California men to proceed, and the federal government asked the high court to review that decision.
“The problem is that now the government takes a much stronger view of what state-secrets doctrine is,” Justice Neil Gorsuch told Deputy Solicitor General Edwin Kneedler, who argued on behalf of the FBI.
There is a “pretty good argument,” Gorsuch said, that the government is using the state-secrets privilege, under which information is shielded from disclosure when it’s necessary to safeguard national security, “as a means to dismiss the case.”
The case, which was brought against the bureau and five agents in 2011, turns on whether a provision of the Foreign Intelligence Surveillance Act (FISA) displaces the state-secrets privilege, which was invoked by the federal government in seeking to block the suit.
The legal battle before the justices arose after the FBI used a confidential informant named Craig Monteilh to gather information about Muslim residents in Orange County from 2006 to 2007. Over a 14-month span, Monteilh allegedly surveilled the Muslim Americans through non-electronic and electronic means, including by gathering personal information through face-to-face meetings and through video and audio recordings from inside mosques, homes, businesses and at events, according to court filings.
The FBI’s operation, known as Operation Flex, fell apart when Monteilh began expressing interest in violence and said he had access to weapons and wanted to take violent action, according to filings with the Supreme Court. Members of the Muslim community reported him to law enforcement, after which he was revealed to be an FBI informant.
Three of the men who met with and were surveilled by Monteilh — Sheikh Yassir Fazaga, Ali Uddin Malik and Yasser AbdelRahim — sued the FBI in federal court, alleging they were targeted for surveillance because of their religion.
But the federal government moved to dismiss the suit, arguing the claims couldn’t be litigated without risking the disclosure of state secrets — namely, who was being investigated and why — and invoked the state-secrets privilege.
The district court upheld the government’s assertion of the state-secrets privilege, finding its disclosure would compromise national security. But the 9th U.S. Circuit Court of Appeals reversed, ruling that the procedures established under FISA regarding the legality of challenged electronic surveillance displaces the state-secrets privilege and the district court should have reviewed the materials first to see whether the surveillance was unlawful.
Justice Stephen Breyer suggested Monday that a district court judge should have the opportunity to examine evidence from the federal government that underpins its reason for wiretapping someone.
“A plaintiff sues government officials and says: You have unlawfully been wiretapping or surveying, whatever. OK? The government goes back and says: Judge, we have a good reason for doing that wiretapping, and we don’t want to tell people what it is. Doesn’t the judge — shouldn’t he still look to see if they’re right?” Breyer asked.
“My point,” he said later, “is there should be a way to look at the information for the court and decide what to do.”
Justice Brett Kavanaugh suggested the case could make its way back up to the Supreme Court if the justices sent it to the lower courts for further proceedings and warned against “doing a drive-by in this case on a massively important issue.”
A decision from the justices is expected by summer of 2022.