Justices wrestle with case of FBI surveillance

Government asserts state secrets privilege

WASHINGTON – The Supreme Court hinted Monday it may ask lower courts to take another look at a case involving FBI surveillance of Muslims even as the government has cited national security in declining to provide evidence about the operation.

Yassir Fazaga and two other Muslim men said the FBI’s covert surveillance took place solely because of their religion and that it violated their constitutional rights.

“The government takes a very much stronger view of what state secrets doctrine is and ... it says anytime we have a secret, we’re entitled to use that evidence in our possession without telling you anything about it.”

Associate Justice Neil Gorsuch

But the federal government asserted the state secrets privilege, which allows it to withhold evidence if it considers national security to be at stake. The California- based U. S. Court of Appeals for the 9th Circuit ruled that a provision of the Foreign Intelligence Surveillance Act of 1978 requires courts to review the materials in a pri

vate hearing to determine whether any of it could be used in the case.

During arguments, several justices appeared skeptical of the appeals court’s decision but also indicated the challenge should continue, perhaps without the secret evidence the government doesn’t want to provide.

“The government takes a very much stronger view of what state secrets doctrine is and ... it says anytime we have a secret, we’re entitled to use that evidence in our possession without telling you anything about it,” Associate Justice Neil Gorsuch said during an exchange with the government’s attorney. “In a world in which the national security state is growing larger every day, that’s quite a power.”

Edwin Kneedler, arguing on behalf of the Biden administration, said the government is concerned about the broad ramifications in cases beyond the one at hand.

Among the fundamental questions raised: What happens when the government claims the state secrets privilege over electronic surveillance of U. S. citizens? Can a lawsuit be dismissed at an early stage? Or does the 1978 FISA law compel a lower court to review the material to decide if the government has good reason to conduct the surveillance?

It’s the second time the issue has recently made its way to the court. In October, a majority of the court signaled skepticism over allowing a Guantanamo detainee to subpoena former CIA contractors who masterminded “enhanced interrogation.”