WASHINGTON. On Friday, the Supreme Court unanimously rejected an argument that could have restricted the spread of the doctrine of state secrets in a 2006 Southern California surveillance case involving Muslims.
The decision came a day after judges heard another case involving the doctrine of state secrets, which sometimes requires lawsuits to be dismissed that disclose information that could harm national security. In its split ruling on Thursday, the court ruled that doctrine barred Abu Zubaida, who was waterboarded more than 60 times and is being held without charge in Guantanamo Bay, from taking testimony from two CIA contractors who were instrumental in his brutal interrogation.
Friday’s decision was more modest and technical. This involved surveillance undertaken by Craig Monteil, an FBI informant who was unable to provide any public evidence of wrongdoing. On the contrary, after Mr. Monteil started talking about jihad and violence at a mosque in Irvine, California, the community leader contacted the FBI to report him.
Three men spied on by Mr. Monteil sued the FBI and the agents who ran it, alleging, among other things, that their right to practice their religion had been violated. The government chose to dismiss these claims, citing state secret privilege and stating that disclosing information needed to defend the suit would endanger national security.
In 2019, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of the plaintiffs. The Court of Appeal stated that a provision of the Foreign Intelligence Surveillance Act of 1978, or FISA, established procedures for reviewing information relating to national security, and that the trial judge should have used them instead of dismissing the case after the government resorted to the doctrine of national security. secrets.
“Congress wanted FISA to supplant the privilege of government secrecy,” Judge Marsha S. Berzon wrote unanimously to a panel of three appellate court judges.
Judge Samuel A. Alito, Jr., in a letter to the court, stated that this was a misreading of FISA. He wrote that there was no indication that Congress intended to influence the privilege.
“FISA does not invoke state secret privilege,” he wrote. “It does not mention the privilege by name or use any identifiable synonym, and the only reference to the subject matter of the privilege reflects a desire to avoid changing the privilege law.”
Moreover, the statute serves a different purpose than the privilege, he wrote. He wrote that according to FISA, “the main issue is the legality of surveillance.”
But, he added, “we have never suggested that the claim of state secret privilege could be refuted by proving that the evidence was obtained illegally.”
Judge Alito wrote that the appeals court has yet to decide several important issues in FBI v. Fazagi, no. 20-828, including whether the fundamental issue of whether the state secret privilege applies.
Brian R. Frazell, a lawyer at the Center for Constitutional Responsibility who filed in support of Muslim men under surveillance, said the decision could have been worse.
“While we are disappointed that the court did not recognize that FISA is a substitute for the privilege of state secrets,” he said in a statement, “we are pleased that the court stopped there, leaving other issues open in a way that could allow prosecution of this and other cases.”