Why the Supreme Court is debating ‘state secrets’ and government surveillance

The Supreme Court heard arguments Monday in a case pitting a group of Muslim men against the FBI

American law offers strong protections to the country’s national security organizations. But it also aims to shield citizens from being wrongly surveilled.

On Monday, the Supreme Court considered a case in which the first of those policy goals seems to threaten the second, weighing whether the government’s interest in protecting “state secrets” should trump a Muslim community’s interest in challenging a surveillance program.

The case originated more than a decade ago, when three Muslim men in Southern California filed a lawsuit alleging that the FBI had violated their religious freedom by spying on them solely because of their faith. They cited details provided by a former FBI informant to justify their complaint.

The FBI responded to the religious freedom claims by invoking the state secrets defense. Government attorneys said they couldn’t defend the challenged surveillance program without jeopardizing national security in some way.

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A district court accepted the government’s arguments and dismissed the case in 2012. But then the Muslim men won their appeal to the 9th Circuit Court of Appeals, which ruled that a federal law governing the use of surveillance-related evidence in court proceedings should limit the state secrets privilege in this case. Earlier this year, the Supreme Court agreed to review that decision.

During oral arguments on Monday, the court seemed sympathetic to the Muslim men’s claims but also uncomfortable with the legal reasoning behind the 9th Circuit’s decision.

Several justices debated how they could reject that ruling without making it seem like the state secrets privilege requires the case to be dismissed.

“We (could) send it back for the court below to decide how state secrets interacts with a motion to dismiss,” said Justice Sonia Sotomayor at one point.

She and other justices, including some conservatives, questioned whether too much deference is currently given to government interests. Organizations like the FBI need to be able to protect sensitive information, but it seems wrong to empower officials to sink almost any case challenging their surveillance techniques, said Justice Neil Gorsuch.

“In a world in which the national security state is growing larger every day, that’s quite a power,” he said.

Edwin S. Kneedler, who argued on behalf of the FBI, rejected the idea that the state secrets privilege was abused in this case. The district court reviewed the government’s concerns and agreed that allowing the lawsuit to move forward could put people in danger, he said.

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“The district court held — and the 9th Circuit did not disagree — that all the information about the investigation was privileged. The district court then proceeded to say, ‘Can this case properly go forward without that information?,’ and said no,” Kneedler said.

The attorney for the Muslim men, Ahilan Arulanantham, maintained that dismissal was the wrong move. The evidence in question isn’t needed for the case to move forward, he said.

“We have all the evidence that we need on these religion claims just based on our own evidence, and yet they’re still saying the religion claims cannot go forward,” he said.

The Supreme Court is expected to release its decision before the end of June.

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