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FBI wins narrow high court ruling on failed mosque sting operation

For the second time this week, the justices backed the government’s use of the state secrets privilege. 

WASHINGTON (CN) — The FBI can invoke privilege for state secrets to duck a lawsuit over a failed operation spying on Muslims after 9/11, the Supreme Court ruled in a unanimous decision Friday.

Sheikh Yassir Fazaga, an imam with the Orange County Islamic Foundation, brought the suit with two other Muslim men over a decade ago, saying their rights were violated through the FBI counterterrorism investigation dubbed “Operation Flex” in which an undercover informant, Craig Monteilh, was dispatched to infiltrate Muslim communities in Southern California.

The sting was exposed when the leader of a mosque in Irvine called the police rather than take the bait when Monteilh, calling himself Farouk al-Aziz, began remarking that Muslims have a duty to take violent actions, and that he had access to weapons.

Though a federal judge found that the state secrets privilege preempted all but some claims under the Fourth Amendment and the Foreign Intelligence Surveillance Act, the Ninth Circuit reversed in 2019, directing the court to reviewed any evidence implicating state secrets to determine whether the alleged surveillance was unlawful.

The government appealed to prevent the information from being revealed. During high court oral arguments in November, the justices looked for a way to rule in the case without creating a broad new precedent. 

Justice Samuel Alito — who wrote Friday's opinion — said the text of FISA works against Fazaga. 

“The absence of any statutory reference to the state secrets privilege is strong evidence that the availability of the privilege was not altered in any way,” the Trump appointee wrote. “Regardless of whether the state secrets privilege is rooted only in the common law (as respondents argue) or also in the Constitution (as the Government argues), the privilege should not be held to have been abrogated or limited unless Congress has at least used clear statutory language.” 

But even if the justices did adopt the broader interpretation of the FISA provision at issue, Alito said such a reading would still be compatible with the state secrets privilege. 

Alito also said the FISA provision will likely not be used in many cases. 

“Section 1806(f ) is most likely to come into play when the Government seeks to use FISA evidence in a judicial or administrative proceeding, and the Government will obviously not invoke the state secrets privilege to block disclosure of information that it wishes to use,” Alito wrote. 

Alito noted as well that the state secrets privilege does not ask whether evidence was lawfully obtained but if revealing it would harm national security. 

“We have never suggested that an assertion of the state secrets privilege can be defeated by showing that the evidence was unlawfully obtained,” Alito wrote. 

Friday's ruling comes only a day after the Supreme Court last backed the government’s use of the state secrets privilege, blocking testimony from federal contractors over torture at CIA black sites.

Ahilan Arulanantham, an attorney for Fazaga, emphasized that their case is still moving forward, despite the reversal.

“My clients and many other members of Southern California’s Muslim American communities have been waiting 15 years for justice,” said Arulanantham, who is with School of Law at the University of California, Los Angeles. “The Supreme Court’s decision today brings us one step closer to achieving it. We look forward to pursuing our clients’ claims, and to holding the FBI accountable for its long-standing unconstitutional practices discriminating against Americans who practice the Muslim faith."

While the court ruled that the state secrets claim is not displaced by FISA, it did not rule on establishing a correct interpretation of the contested provision. Alito said the Ninth Circuit had not yet ruled on that issue so the justices would not either. 

“Because we conclude that §1806(f ) does not have that effect under either party’s interpretation of the statute, we do not decide which interpretation is correct,” Alito wrote. 

The Department of Justice and Ahilan Arulanantham, an attorney at UCLA School of Law representing Fazaga, did not respond to requests for comment following the ruling.  

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