Court rules that the FBI can block lawsuit with ‘state secrets’ privilege
The US Supreme Court ruled on Friday that the FBI may invoke the “state secrets” privilege to block a judge from examining evidence concerning its surveillance of a California mosque in the wake of the 9/11 attacks.
In a unanimous opinion authored by conservative Justice Samul Alito, the court ruled that the current law surrounding state secrets prohibits a lower court judge from examining information from the FBI that may be relevant to the case.
Earlier, the 9th Circuit Court of Appeals ruled that the Foreign Intelligence Surveillance Act (FISA) would allow a judge to examine this information behind closed doors, allowing the lawsuit against the FBI to proceed without revealing intelligence publicly.
However, Alito wrote that “Congress did not eliminate, curtail, or modify the state secrets privilege when it enacted” FISA, therefore FISA does not trump state secrets laws.
The case itself is a long running battle that began in 2006 when the FBI sent an informant into a mosque in Orange County. According to the Los Angeles Times, the informant “recorded thousands of hours of conversations and compiled names and phone numbers,” eventually attempting to talk some of the faithful into “carry[ing]out a terrorist attack in this country.”
Some of the mosque’s attendees reported the informant to the FBI, and he then joined the American Civil Liberties Union and a number of these men in bringing a lawsuit against the agency. The lawsuit, which has languished in lower courts since 2011, alleges that the plaintiffs were targeted on account of their religion, and had their Fourth Amendment protections against unreasonable searches and seizures violated.
The case was dismissed by a federal judge in 2012, who argued that the state secrets privilege allowed the FBI to keep secret its reasons for targeting the mosque. However, the 9th Circuit Court of Appeals revived the case in 2019 when it ruled that the agency’s evidence could be examined in private under FISA.
Friday’s ruling does not explicitly block the case from proceeding, but sends it back down to the 9th Circuit, which will be asked to reconsider whether the FBI’s evidence is crucial to the case.
The Justice Department under Presidents Obama, Trump and Biden has consistently argued that revealing this evidence would compromise national security. The Supreme Court has deferred to this argument before, and in a separate ruling on Thursday blocked two former CIA contractors from testifying before a Polish tribunal about the CIA’s use of torture and waterboarding at a “black site” believed to be in Poland. While the court found that this testimony could reveal state secrets, the existence of the CIA’s torture program and the grizly accounts of those tortured by the agency have been public knowledge for nearly a decade.
