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The Islamic Center of Irvine. | Photo courtesy of Hcallas/Wikimedia Commons (CC BY-SA 3.0)
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The U.S. Supreme Court issued a narrow ruling Friday in an American Civil Liberties Union lawsuit on behalf of Orange County mosques that were spied on by FBI agents that sends the case back to the 9th Circuit Court of Appeals to hash out issues regarding the state secrets privilege.
In a 9-0 ruling, the high court ruled that the government may assert the state secrets privilege, but left open the question of whether courts can dump the cases just because the privilege is invoked for national security reasons.
The case dates back to an FBI surveillance program in 2006 and 2007 in Orange County in which an informant worked undercover as a convert to Islam.
The informant gathered information from hundreds of Muslim Americans, but the issue came to light when he began talking about “jihad” and some members of the community called police.
The U.S. 9th Circuit Court of Appeals on Feb. 28, 2019, overturned a ruling from U.S. District Judge Cormac Carney in a class action lawsuit involving allegations from Mission Viejo Imam Yassir Fazaga and two other Orange County Muslims, Ali Uddin Malik and Yasser AbdelRahim, that they were the subject of illegal surveillance. The three alleged that for more than a year in 2006 and 2007 the FBI paid a confidential informant to spy on local Muslims.
The 9th Circuit ruled that Carney should have reviewed any state secrets evidence to determine whether the surveillance was legal under procedures outlined under the Foreign Intelligence Surveillance Act of 1978.
The Supreme Court disagreed, saying FISA was never meant to displace the state secrets privilege.
The federal government argued that the ACLU case should be mostly dismissed because disclosure of the information gathered in the case would threaten national security.
The Supreme Court did not get into the specifics of the Orange County case, leaving that to the appellate court. But the high court rejected the argument that FISA should displace the state secrets privilege.
“First, the text of FISA weighs heavily against respondents’ displacement argument,” Justice Samuel A. Alito Jr. wrote in the opinion.
“FISA makes no reference to the state secrets privilege. It neither mentions the privilege by name nor uses any identifiable synonym, and its only reference to the subject of privilege reflects a desire to avoid the alteration of privilege law.”
Unless Congress passes a law clearly stating whether FISA should replace the state secrets privilege then the state secrets privilege stands, Alito wrote.
The difference is that when state secrets privilege is invoked it renders the question of whether the evidence was gathered legally moot due to national security taking precedence, Alito wrote.
Under FISA, the evidence could be considered behind closed doors by the judge to determine what could be used in litigation and what would be kept secret.
“We need not delineate the circumstances in which dismissal is appropriate (or determine whether dismissal was proper in this case), but even respondents concede that dismissal is available in a ‘spy-contracting case’ when a case’s ‘very subject matter is secret,”‘ Alito wrote.
“We reiterate that today’s decision addresses only the narrow question whether (FISA) displaces the state secrets privilege,” Alito wrote. “Because we conclude that (FISA) does not have that effect under either party’s interpretation of the statute, we do not decide which interpretation is correct.
“Nor do we decide whether the government’s evidence is privileged or whether the District Court was correct to dismiss only where the case concerns a government contract or where the very subject of the action is secret… The Ninth Circuit did not decide those questions, and we do not resolve them here.”
ACLU attorney Peter Bibring told City News Service that “the reason the ruling was 9-0 is because it was so very narrow. It doesn’t address the fundamental questions about state secrets privilege and its scope.”
Bibring said his clients, “don’t need any secret information to prove their case,” that their 1st Amendment rights were violated. “We’re looking forward to our opportunity to have their day in court and put forward the evidence, much of which is already public.”
