WASHINGTON (CN) — During two hours of oral argument, the justices of the Supreme Court grappled Monday morning with how to avoid creating a broad new precedent on state secrets as it rules in a decade-old class action over the FBI spying on Muslim communities.
The case concerns the counterterrorism investigation “Operation Flex,” wherein Craig Monteilh adopted the name Farouk al-Aziz as a purported declaration of faith to obtain information for the FBI on Southern California-area Muslims. Monteilh attended mosques and even targeted certain people at a gym, but the investigation began to unravel when Monteilh laid his bait. In 2007 the leader of a mosque in Irvine called the police about Monteilh's statements urging acts of violence. The mosque soon obtained a restraining order against Monteilh, and his identity as an informant was fully exposed during a 2009 naturalization fraud case against another member of the mosque who reported Monteilh’s statements to the police.
Another two years later, imam Yassir Fazaga and two other Muslims, Ali Uddin Malik and Yasser Abdelrahim, filed a federal class action under the Foreign Intelligence Surveillance Act. In 2019, the Ninth Circuit reinstated several claims that a federal judge had dismissed the state secrets privilege, prompting the government to appeal to the Supreme Court.
“The state secrets privilege is firmly grounded in the constitution and the common law and is critical to safeguarding the national security,” Deputy U.S. Solicitor General Edwin S. Kneedler argued this morning in Washington.
Justice Neil Gorsuch said the government was taking a much stronger view of what state secrets doctrine is, not only by preventing the information in question from being widely viewed but also by not allowing it to be subjected to a court’s judgment. He said the government uses that secret evidence “more or less as a matter of routine” for dismissing suits brought against it.
“In a world in which the national security state is growing larger every day, that's quite a power,” the Trump appointee said.
Justice Sonia Sotomayor said there was no precedent for a secret hearing as called for by the Ninth Circuit to threaten national security.
“I don't know where in any of our jurisprudence we've ever suggested that an in camera review by a judge threatened national security,” the Obama appointee said.
Ahilan T. Arulanantham, faculty co-director of UCLA School of Law’s Center for Immigration Law and Policy and lead attorney for the Muslim plaintiffs, noted that theirs is not the standard legal fight that implicates state secrets.
“This is very different from a case, like most state secrets cases, where the plaintiffs need the information in order to proceed,” Arulanantham said. “This is a case where we have all the evidence that we need on these religion claims just based on our own evidence, and yet they're still saying the religion claims cannot go forward.”
Justice Stephen Breyer described a scenario where the information supplied in camera dooms the case.
“But the government says: Judge, look at this. You will see that we both can't introduce the information because it's just too secret, it's unbelievable harm if we do, and it proves beyond any doubt their case is wrong,” the Clinton appointee said. “What is the court supposed to do then? And there I don't know.”
Justice Brett Kavanaugh said the case could be sent back to the Ninth Circuit where all of the procedural issues presented in hypotheticals from Justices Breyer and Kagan and himself could be dealt with, and then they could reexamine central issues in the case.
“If we conclude — if we agree with the government — I know you don't want us to — but if we agree with the government on the 1806(f) issue and send it back to the Ninth Circuit, as Justice Breyer and Justice Kagan described and I mentioned earlier, all these kinds of issues can be fleshed out and come back to us where that's the central focus of the case,” the Trump appointee said. “I feel like we'd be doing a drive-by in this case on a massively important issue if we get into that.”
Justice Amy Coney Barrett seemed to put a point on the justices’ skepticism to make a broad ruling concerning state secrets.
“How we interpret the statute or what we might say or not say about the state secrets privilege has ramifications beyond your case,” the Trump appointee said.
Arulanantham said the narrowest way to rule on the case would be to say it was wrong of the District Court to dismiss claims on the basis of state secrets.
“But the narrowest ground, perhaps even narrower than that, would just be to say it was wrong to dismiss on the pleadings in this case,” Arulanantham said. “We know the very subject matter of this case is not a state secret.”
Following the hearing, Arulanantham said there were hard questions for both parties but he hoped the justices would allow his clients’ case to proceed.
“We sincerely hope that the Supreme Court will allow our clients’ case to proceed in fidelity to the constitution’s protections for religious freedom,” Arulanantham told reporters at a press conference outside the court. “And as you heard they had a lot of hard questions for both sides. Now we will wait and hope that they will see a path to justice."
Hussam Ayloush, CEO of the California chapter of the Council on American-Islam Relations, and executive director of its Los Angeles office, spoke at the press conference about the importance of the court’s decision on First Amendment rights.
“The Supreme Court's decision in this case will have serious implications for us all,” Ayloush said. “The court can rule that First Amendment applies to every American, no exceptions, that we cannot target and surveil Americans on the basis of their religion, that is not who we are as a country. Or it can rule in favor of the FBI, leaving us with a justice system where even our highest court does not have oversight over government agencies. Imagine what that could mean. Are we a country where even the most powerful can be held accountable or are we not? It is time for accountability. It's time for justice.”
Brianne Gorod, chief counsel for the Constitutional Accountability Center who filed an amicus brief in this case, said the government’s reliance on the constitutional to support its state secret’s claim was inaccurate.
“As we explain in our brief, the history of the state secrets privilege makes clear that the government’s argument is wildly off base,” Gorod said in a statement. “When the federal courts developed the privilege during the early twentieth century, they did so using their common law authority to craft evidentiary rules based on their own perceptions of sound public policy, without any reference to constitutional considerations. When the Justices decide whether this case can proceed, their decision should not be influenced by an inaccurate account of the history of the privilege.”
The Department of Justice declined to comment following oral arguments.
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