The US Supreme Court yesterday heard arguments in a potential landmark case brought by three Muslim men from California. The three accuse the FBI of carrying out surveillance on them illegally following the 11 September 2001 attacks, which they allege is a violation of their constitutional rights.
In response to the allegation, the FBI has invoked the state secret privilege doctrine that allows the government to withhold classified information that could threaten national security. The court, reported Reuters, appeared reluctant to disallow the agency's bid to block the civil rights lawsuit, having heard around two hours of argument in the FBI's appeal against a lower court's 2019 decision which reversed the dismissal of the case by a district court, wherein the federal government relied on the "state secrets" argument. The Ninth US Circuit Court of Appeals in San Francisco overturned the ruling, applying the Foreign Intelligence Surveillance Act, which requires courts to review the evidence in a private hearing to determine whether any of it could be used in the case.
The lead plaintiff is Sheikh Yassir Fazaga, who served as an imam at the Orange County Islamic Foundation. Along with two other Muslims who regularly attended the Islamic Centre of Irvine, he says that an undercover FBI informant infiltrated the mosque in 2006 and began gathering intelligence for over a year; most of his interactions with members of the community were recorded using hidden devices. The FBI informant was eventually reported by the Muslim community after he began asking people about "violent jihad".
Some justices appeared to be sceptical about the appeal court's ruling. "This kind of information depending on what it is, is not the kind of information you want floating around, even in the White House," said conservative Justice Brett Kavanaugh.
However, a more liberal jurist, Justice Stephen Breyer, believes that it would be premature to dismiss the claims without the trial judge getting a chance to review certain documents related to the case properly. "My point is there should be a way to look at the information… and decide what to do," he said.
Ahilan Arunlanathan, a law professor at the University of California Los Angeles (UCLA), argued on behalf of the claimants. He said that the FBI cannot use secret information to dismiss the lawsuit and told the judges that the hearing should be allowed to proceed, even if the information is withheld from open court.
The Supreme Court is expected to deliver a ruling in late June next year.