June 7, 2021: The U.S. Supreme Court on Monday agreed to hear the FBI’s bid to block a civil rights lawsuit by three Muslim men from California who accused the agency of illegally conducting surveillance on them following the Sept. 11, 2001, attacks on the United States.
The justices will take up the FBI’s appeal of a lower court’s 2019 ruling that let various claims made by the men move forward in the litigation. The Supreme Court will consider whether the bulk of the claims should be rejected based on the government’s so-called state secrets privilege, a legal doctrine sometimes asserted when national security interests are invoked.
The court will hear the case during its next term, which starts in October.
The 2011 lawsuit accused the FBI of infiltrating mainstream mosques in Southern California and targeting Muslim Americans for surveillance because of their religion. It accused the agency of engaging in religious discrimination in violation of the U.S. Constitution’s First Amendment by targeting Muslims, as well as violating the Fourth Amendment prohibition on unreasonable searches and seizures.
The plaintiffs are: Eritrean-born U.S. citizen Yassir Fazaga, an imam at the Orange County Islamic Foundation in Mission Viejo; native-born U.S. citizen Ali Uddin Malik, who attended the Islamic Center of Irvine; and Yasser Abdel Rahim, a U.S. permanent resident from Egypt who also attended the Islamic Center of Irvine. They are represented by the American Civil Liberties Union and others.
The lawsuit focuses upon 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-Sept. 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. Monteilh also recorded conversations and conducted surveillance, according to court papers.
The arrangement unraveled when Monteilh started making statements about wanting to take violent action and community members reported him to the local police, and the FBI obtained a restraining order against him, according to court papers.
In a 2012 ruling, a federal judge in California dismissed the claims against the FBI, determining that they were barred under the state secrets privilege. The court did permit claims accusing some individual FBI agents of violating the Foreign Intelligence Surveillance Act, known as FISA, which regulates how the government conducts electronic surveillance.
The San Francisco-based 9th U.S. Circuit Court of Appeals rejected the government’s state secrets argument, saying that the claims should instead be analyzed under a section of the FISA law that lets judges review the legality of surveillance.
In court papers, the Justice Department said that provision is meant to be employed only in circumstances in which the government intends to use evidence obtained from surveillance against an individual, not as a mechanism to challenge the methods used by the FBI more broadly.
The Justice Department also said the 9th Circuit ignored Supreme Court precedent that holds that “courts should not endanger national security by allowing state secrets to be used in litigation.”
The Supreme Court in April took up another case involving the state secrets privilege.
In that case, the government is seeking to prevent two former CIA contractors from being questioned in a criminal investigation in Poland over their role in interrogating a suspected high-ranking al Qaeda figure who was repeatedly subjected to waterboarding, a form of simulated drowning widely considered to be torture.