The United States Supreme Court has heard arguments in a case involving three Muslim men from California who accused the FBI of illegally conducting surveillance on them following the September 11, 2001 attacks.
The country’s top court has been asked to decide whether to allow the men’s lawsuit to move forward amid opposition from the FBI, which has claimed it cannot be sued for religious discrimination because doing so could reveal state secrets.
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At issue is whether a 1978 US surveillance law, which sets rules for domestic spying on Americans, displaces a judge-made doctrine of state secrecy and provides grounds for the men’s case to be heard.
Muslim Americans across the US have accused the FBI of systematically violating their constitutional rights by spying on them after 9/11, but there have been few opportunities to challenge the FBI’s conduct in court because it has been primarily conducted in secret.
Conservative Supreme Court Justice Neil Gorsuch on Monday questioned the US government’s argument that the FBI should be allowed to obtain a dismissal of the case while also keeping its evidence secret.
“In a world in which the national security state is growing larger every day, that is quite a power,” Gorsuch said.
The lawsuit focuses on a 14-month period in 2006 and 2007 when the FBI paid an informant named Craig Monteilh to gather information on Muslims as part of a post-9/11 counterterrorism investigation.
Monteilh met with Muslims in southern California, adopted a Muslim name and said he wanted to convert to Islam, according to court papers, while also recording conversations and conducting surveillance.
Sheikh Yassir Fazaga, an imam at the Orange County Islamic Foundation in Mission Viejo, and Ali Uddin Malik and Yasser Abdelrahim, both congregants at the Islamic Center of Irvine in Irvine, California, brought the lawsuit.
The men, represented by lawyers from the American Civil Liberties Union and others, claimed religious discrimination and violations of other rights, saying they and hundreds of others were spied on solely because of their faith.
A US district court dismissed the case after the US government said allowing it to go forward could reveal “state secrets”, agreeing that continuing the case would “greatly risk disclosure of secret information”.
But the Ninth US Circuit Court of Appeals in San Francisco reversed the decision in 2019, saying the lower court first should have privately examined the evidence the government said was state secrets.
The Biden administration, like the Trump administration before it, has argued that the decision was wrong.
On Monday, other Supreme Court justices also questioned the FBI’s claims that the lawsuit cannot be allowed to proceed on the grounds that state secrets would be jeopardised.
Justice Stephen Breyer said it would be premature to dismiss the claims without the trial judge getting a chance to properly review certain documents related to the case. “My point is there should be a way to look at the information … and decide what to do,” said Breyer, a liberal jurist.
Ahilan Arunlanathan, a law professor at the University of California, Los Angeles, who argued the case on behalf of the plaintiffs, said the FBI cannot use secret information to dismiss the lawsuit.
Instead, Arunlanathan told the justices that the case should be allowed to go forward even if the FBI’s information is withheld from the court. “Neither Congress nor common law permit dismissal and withholding evidence” at the same time, he said.
But Justice Brett Kavanaugh appeared sympathetic to the FBI’s secrecy claims. “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 Kavanaugh, a conservative.
Nevertheless, Gorsuch and other justices’ hard questioning of the government’s arguments left advocates for the plaintiffs “optimistic” about the direction the court is headed, said Patrick Toomey, a lawyer for the ACLU, which is representing the three Muslim men.
“They clearly understood the key issues in the case, including what’s at stake when the government can invoke secrecy to simply dismiss claims of religious discrimination,” Toomey told Al Jazeera.
“It showed the justices are trying to find their way to a consensus about how the case should go from here,” Toomey said.
The Supreme Court is expected to deliver a ruling by the end of June.
“We sincerely hope the Supreme Court will allow our clients’ case to proceed in fidelity to the Constitution’s protections for religious freedom,” Arunlanathan said at a news conference after the hearing on Monday.
“They had a lot of hard questions for both sides. Now we will wait and hope that they will see a path to justice,” he said.