The U.S. Supreme Court Monday agreed to take up an issue regarding the state secrets privilege cited by the government in a civil lawsuit brought by the American Civil Liberties Union on behalf of Orange County mosques that were being spied on by FBI agents.
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.
Justice Department attorneys asserted the state secrets privilege to dismiss various religious discrimination claims, which Carney granted except in all but one case.
The appellate judges said that Carney should have reviewed any state secrets evidence necessary for a determination if the surveillance was legal under Foreign Intelligence Surveillance Act procedures. The FBI appealed that ruling in December with the solicitor general under the Trump administration arguing that it “has the startling consequence of transforming a limited provision of FISA that was designed to safeguard national security information into a mechanism for overriding the executive’s invocation of the state-secrets privilege and for adjudicating the merits of private-party claims for substantive relief on the basis of state secrets.”
ACLU Attorney Mohammad Tajsar told City News Service it is the first time the Supreme Court is reviewing FISA procedures.
“This is the first time the court has anything to say about FISA,” Tajsar said.
“What the Supreme Court has agreed to take up at the government’s request is a quite narrow question,” Tajsar said.
The attorneys will debate whether a FISA claim “displaces the ability of the government to claim a state secrets privilege,” Tajsar said.
The FISA procedures were designed to “protect confidences,” and that they are the proper way to “adjudicate these cases,” Tajsar said.
The government, he argued, is saying “These cases are so secret not even a secret proceeding FISA authorizes are protective enough for the national security mandate. We think that position is erroneous.”
Tajsar said, “The logical extension of that argument is that FISA is unconstitutional. It is an extraordinary argument for the government to make… in a case of surveillance of Muslims in Orange County mosques 15 years ago that this case is still so sensitive that it cannot be heard even under the most stringent procedures in a court in Santa Ana because it threatens to disclose something that would somehow imperil us now.”
If the Supreme Court sides with the government it has the potential to lead to a dismissal of the entire case, Tajsar said. There might be “slivers” of the case that survive, “but the general outcome is that everything disappears,” he added.
Tajsar noted that there has been a lot already reported about the case over the years.
“Lots of people know about this, but the government is saying, `No, no, no, no one can hear about this because the sky would fall,”’ Tajsar said.