Supreme Court skeptical of FBI’S claim in monitoring of Muslims in Orange County
WASHINGTON —
For the second time in two months, the U.S. government on Monday urged the Supreme Court to invoke “state secrets” to shield it from allegations of wrongdoing — in this instance, the secret recording of Muslims who gathered for prayer at a mosque in Orange County, California.
A Justice Department attorney said the court should dismiss a 10-year-old lawsuit that alleges Muslims were targeted for 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, said Deputy Solicitor General Edwin Kneedler, because national security would be at risk if the FBI had to explain why it began spying on an Islamic center in Irvine.
But his argument ran into skepticism from across the court’s usual ideological divide, from Justices Neil M. Gorsuch and Amy
Coney Barrett on the right to Justices Sonia Sotomayor and Stephen G. Breyer on the left.
For much of the twohour argument, the justices debated whether to send the case back to California for further hearings before the 9th Circuit Court of Appeals in San Francisco or before U.S. District Judge Cormac J. Carney in Orange County.
Typically, the government raises a state secrets claim if a lawsuit or court proceeding could reveal a military secret or expose a spy who is working for the United States.
This case is different because it involves domestic surveillance of U.S. persons, said University of California,
Los Angeles 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 to decide behind closed doors whether the FBI had good reason for wire-tapping phones or otherwise spying on people to gather intelligence.
Rather than dismiss the case, he said the court should order the district judge to examine the FBI’S evidence before deciding whether the lawsuit may proceed.
The 9th Circuit Court largely adopted this view of the law as a means to balance the investigators’ need for security and the plaintiffs’ right to hold the government accountable for violating the Constitution.
But last December, in the final weeks of the Trump administration, the Justice Department appealed the case of FBI vs. Fazaga, and urged the high court to overturn the 9th Circuit’s ruling and dismiss the lawsuit.