By the end of the two hour-plus marathon session, the justices did not seem to be ready to make a major statement about the scope of the government’s ability to claim a “state secret privilege,” which permits the government under some circumstances to block the release of information in a lawsuit that could harm national security interests.
Several of the justices seemed to be looking for ways to rein in a lower court opinion that went against the government and to send the whole issue back to the lower courts for further review. Such a move would dodge a major opinion that could shape the future of domestic surveillance, exploring the government’s stated needs for secrecy against arguments made by critics who believe the privilege is sometimes used to conceal abuses and thwart accountability in the courts.
The dispute stems from a lawsuit brought by Yassir Fazaga and two other Muslim men, who say an undercover informant for the FBI infiltrated a mosque in Orange County, California, in 2006 and spent more than a year collecting names, phone numbers, emails and other information culled from the community as a part of a counterterrorism investigation. According to court papers, the FBI told informant that they wanted to “get as many files on this community as possible.”
The informant attended classes at the mosque, gathered information related to charitable giving and attended Muslim fundraising events, all the while going to daily prayers. Most of his interactions were recorded using devices provided by the FBI.
After his identity was ultimately revealed, Fazaga brought suit.
A district court ruled in favor of the government and dismissed the claims under the so-called state secret privilege. The 9th US Circuit Court of Appeals, however, reversed the decision
holding that the Foreign Intelligence Surveillance Act — a law aimed electronic communications — provides for procedures for challenging unlawful electronic surveillance in early stages of litigation and takes priority over the states secret privilege.
The US government then filed an appeal with the Supreme Court.
Ahilan Arulanantham, a lawyer for the men (two US citizens and one lawful permanent resident), told the justices Monday that his clients should be able to have their day in court after the government violated the Constitution’s protection of freedom of religion.
Arulanantham said the appeals court was right to permit the case to proceed because FISA allows the review of the lawfulness of the surveillance and at least — at the threshold — displaces a claim based on “state secrets.” He said that the “state secrets” privilege authorizes the exclusion of evidence but not the use of secret evidence to entirely dismiss a case.
Deputy Solicitor General Edwin Kneedler told the justices that the federal appeals court decision holding that FISA displaced the state secrets privilege would seriously undermine the executive branch’s ability to protect the nation’s secrets. He said the privilege is “critical in safeguarding” national security.
Justices on both sides of the ideological spectrum expressed skepticism at times of the ruling by the 9th Circuit, suggesting they would order the court to wipe away the opinion and start anew.
Chief Justice John Roberts said that he didn’t think the intent of Congress was to pass the FISA law in order to block the government from being able to assert the privilege. He said such an interpretation would be akin to trying to “bury and elephant in a mouse hole.
Justice Brett Kavanaugh and others suggested they could instruct the lower court to revisit the particulars of the case at hand and leave a broader opinion concerning the scope of the “state secret” privilege for another day.
“I feel like we’d be doing a drive-by in this case on a massively important issue if we get into that,” he said.