Muslims face setback in challenge to FBI surveillance

The Supreme Court on Friday unanimously overturned a lower court ruling in favor of a Muslim community in California

The Supreme Court on Friday dealt a blow to a group of California Muslims who say the FBI unlawfully surveilled them because of their faith. But the men and their attorneys say there’s an upside to the ruling, and they’ve vowed to continue pursuing their case.

This outcome “could have been better, but ... today we live to fight another day,” said Yassir Fazaga, one of the men alleging religious discrimination, during a Friday press conference.

In a unanimous decision, the justices overturned a lower court ruling in favor of Fazaga and his co-plaintiffs, determining that the 9th U.S. Circuit Court of Appeal’s misapplied a federal law governing how surveillance-related evidence can be used in court.

Friday’s ruling did not address the religious freedom issues raised in the lawsuit, nor the broader question of when the government can invoke the “state secrets privilege” to get a case dismissed. The justices made it clear that that there are many details left for the lower courts to work out.

“Today’s decision addresses only the narrow question whether 1806(f) (of the Foreign Intelligence Surveillance Act) displaces the state secrets privilege,” wrote Justice Samuel Alito in the majority opinion.

Inside a Muslim community’s effort to rein in the FBI

Ahilan Arulanantham, one of the attorneys representing the Muslim men, said during the press conference that his team is “quite pleased” that the Supreme Court issued an “extremely narrow ruling.” He noted that the justices rejected the government’s request for the case to be fully dismissed.

“The Supreme Court stated unambiguously that the men we represent can continue to pursue their claims that the FBI spied on them because of their religion,” said Arulanantham, co-director of the Center for Immigration Law and Policy at the UCLA School of Law.

Any further legal action will lengthen an already protracted battle. The case, FBI v. Fazaga, originated in 2011 and has been slowly making its way through the court system since then.

The Muslim men involved — Fazaga, Ali Malik and Yasser AbdelRahim — allege that they are among the targets of a multiyear surveillance effort focused on the Muslim community in southern California. Pointing to statements made by a former FBI informant, they argue that the government’s investigation was motivated by religious discrimination.

“Our community in Southern California was targeted by the FBI and continues to be targeted to this day for no other reason than our religious beliefs and practices,” argued Amr Shabaik, the civil rights managing attorney for the Los Angeles chapter of the Council on American-Islamic Relations, during Friday’s press conference.

The FBI has not explained its actions and has, instead, relied on what’s called a state secrets defense. Government attorneys have argued that agents cannot explain the surveillance effort without putting national security at risk.

In 2012, a district court accepted the government’s claims and ruled that the Muslim men’s case could not move forward. But the 9th Circuit reversed that decision, determining that the Foreign Intelligence Surveillance Act displaced the government’s state secrets privilege.

During oral arguments in November, many of the justices expressed concern that state secrets claims are getting out of control. Officials who abuse their surveillance powers need to be held accountable in some way, Justice Neil Gorsuch said at the time.

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

However, he and other justices also saw issues with the 9th Circuit’s ruling and worried about the ramifications of upholding that decision. Justice Sonia Sotomayor suggested overturning the lower court’s opinion and providing guidance on what specific details need to be addressed.

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“We (could) send it back for the court below to decide how state secrets interacts with a motion to dismiss,” she said.

Friday’s ruling matches Sotomayor’s suggestion. The lower courts will now be able to address other questions raised in FBI v. Fazaga.

“It’s almost like we’ve been through a two or three years detour and we’re back to where we started,” Arulanantham said, adding that his team has always believed that they can win their religious freedom case without the evidence the government is trying to protect.

The case will now return to the 9th Circuit, which will decide how to proceed. There could be many more years of legal wrangling ahead, but the Muslim community is in it for the long haul, Fazaga said.

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