The Supreme Court dealt a setback Friday to three Muslim men in Orange County, California, who have been suing the FBI for spying on their mosques in the years after the Sept. 11, 2001, attacks.
In a unanimous but narrowly written opinion, the high court said the government may invoke the “state secrets” privilege to block the lawsuit from proceeding, and that current law does not authorize a judge to examine the supposedly secret information pertaining to the case in order to determine whether it would be relevant..
The ruling in FBI vs. Fazaga rejects a compromise set out by the 9th Circuit Court, which said a judge acting under the Foreign Intelligence Surveillance Act may weigh the evidence behind closed doors. This was seen as a way to allow the lawsuit against the FBI to proceed, but without revealing intelligence information about the basis for the surveillance.
But Justice Samuel A. Alito Jr., writing for the court, said that was a mistake. “We conclude that Congress did not eliminate, curtail, or modify the state secrets privilege when it enacted” FISA, the law that regulates electronic surveillance.
He called the decision “narrow.” The court’s opinion did not block or end the long-running lawsuit, and sends it back for further proceedings in California.
The case before the court began in 2006 when the FBI in Los Angeles hired Craig Monteilh and paid him to pose as a convert to Islam. For two years, he recorded thousands of hours of conversations and compiled names and phone numbers.
When he began to talk in the mosque about violent jihad, several of the Muslim men reported him to the FBI. After his story was revealed, Monteilh broke with the FBI and cooperated with the ACLU in bringing a lawsuit against the FBI.
The lead plaintiff, Yassir Fazaga, was an iman at the Orange County Islamic Foundation, a mosque in Mission Viejo. The suit alleged the FBI’s so-called Operation Flex was a “dragnet surveillance” program designed to “gather information on Muslims.”
The FBI said the aim of Operation Flex “was to determine whether particular individuals were involved in the recruitment and training of individuals in the United States or overseas for possible terrorist activity.” But the FBI and U.S. attorneys did not explain why they targeted several mosques in Orange County for surveillance. That was a “state secret,” they said.
For more than a decade, the lawsuit has been stuck at a preliminary stage in the federal courts in California. Beginning with Atty. Gen. Eric Holder in 2012, top Justice Department officials have said the suit should be dismissed on the grounds it could reveal national security secrets.
The 9th Circuit Court of Appeals, in a 2-1 decision, devised what sounded like a compromise. It said the judges who meet in secret to hear the government’s requests to conduct “foreign intelligence surveillance” should examine the FBI’s basis for undertaking the surveillance of the mosques and decide whether the suit may proceed.
Lawyers for the outgoing Trump administration in December 2020 asked the high court to take up the case and order the dismissal of the suit. The 9th Circuit’s approach “poses a substantial risk that state secrets will be disclosed,” they said.
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