Several Supreme Court justices seemed to be searching on Monday for a way to avoid deciding whether a law Congress passed more than four decades ago in response to surveillance abuses sometimes supersedes the federal government’s power to use the so-called state secrets privilege to limit or shut down civil lawsuits.
The statute debated at the high court on Monday, the Foreign Intelligence Surveillance Act, became a political lightning rod during President Donald Trump’s administration after it was disclosed that a former foreign policy adviser to Trump’s 2016 campaign had his communications swept up under the law based in part on what a Justice Department watchdog determined was shoddy and inaccurate information.
However, the events that brought the high court to scrutinize the law on Monday date back a decade and a half to an FBI operation that targeted Muslims in Southern California as part of a terrorism investigation during the George W. Bush administration.
A lawsuit against the FBI, its agents and local officials claims that the probe used illegal tactics, such as an informant leaving a key ring with an audio recording device in an Orange County mosque to eavesdrop on conversations. Such a practice is likely illegal under federal law unless authorities had a warrant under FISA.
The Justice Department invoked the state secrets privilege to protect some classified evidence related to the case, but in 2019, the 9th U.S. Circuit Court of Appeals ruled that Congress displaced that privilege when it passed FISA in 1978.
Many of the justices seemed skeptical about that ruling on Monday and signaled there was some merit in the Justice Department’s arguments against that interpretation of the law.
Chief Justice John Roberts sounded doubtful that a small three-word passage in FISA was really intended to override a privilege that protects the government’s ability to keep matters of grave national security under wraps.
“Squirreled away in there are these few words that you’re relying on for displacement of the state secrets privilege, for a reading of FISA that has enormous consequences for state secrets — for national security,” said Roberts, an appointee of President George W. Bush. “The jargon in our opinions, as you know, is this is … burying an elephant in a mouse hole.”
A lawyer for Muslim preachers who claim they were illegally surveilled, Ahilan Arulanantham, argued that FISA was intended to respond to widespread concern over abuses uncovered by the Church Committee, which found extensive use of warrantless wiretaps and so-called black-bag jobs by the FBI and CIA.
“I just don’t see this as a mouse hole,” Arulanantham said. He contended that a literal reading of FISA allows the plaintiffs to proceed with their claim despite the government’s invocation of the state-secrets privilege.
Arulanantham stressed that his clients were not seeking to force disclosure of the government’s secret evidence but solely to proceed on evidence they already have with their claim that they were put under surveillance based on being Muslims who regularly attend mosque. Much of that evidence appears to be the account of a key informant in the case who later became disgruntled with the FBI.
“We know the very subject matter of this case is not a state secret,” Arulanantham said.
However, a judge ruled that other secret evidence was so intrinsic to the government’s defense that those claims could not go forward.
Justice Neil Gorsuch, a Trump appointee, sounded skeptical of interpreting the law to allow the government to completely block such a suit.
Under such an approach, the government “gets to reject a tort judgment and keep the secret,” Gorsuch observed. “In a world in which the national security state is growing every day, that’s quite a power,” he said.
Gorsuch, who has embraced literal readings of statutes even if they sometimes lead to unintended results, said it struck him as “a pretty good argument” that the government was trying to “use” secret evidence in the case by invoking it as a grounds for dismissing part of the suit.
“Why doesn’t that fit perfectly? … That’s using the evidence as an offensive weapon,” Gorsuch said.
But Deputy Solicitor General Edwin Kneedler said the bulk of FISA was about warrants and the use of such evidence in criminal cases.
“It all hangs together,” he said, arguing that the disputed language applied to that sort of “use” and not when the government steps in to try to shut down or limit a civil case.
“This would be a surprising way in which … Congress would override — abrogate the state secrets privilege,” Kneedler said.
Another Trump appointee, Justice Brett Kavanaugh, seemed much more concerned about intrusions on executive power than on the excesses of government action. He suggested he’d be inclined not to interpret the law to cut back on the state secrets privilege, which he called “so foundational to the national security of the country.”
“There would be a major Article II issue if Congress tried to do that, but we don’t need to get into that,” Kavanaugh said, paraphrasing the government’s arguments.
Both Kavanaugh and Justice Samuel Alito, another Bush appointee, said there might be some evidence that is so sensitive that the president doesn’t even want to share it with federal judges.
“This kind of information, depending on what it is, is not the kind of information you want floating around even in the White House to people, much less floating around the country, depending on what it is, of course,” said Kavanaugh, who worked in the White House counsel’s office under Bush.
However, Justice Sonia Sotomayor said the Supreme Court had never gone that far.
“I don’t know where in any of our jurisprudence we’ve ever suggested that an in camera review by a judge threatened national security,” the Obama appointee said.
But Arulanantham said that very, very sensitive intelligence information already has to pass through the courts in connection with applications for FISA warrants, in criminal cases based on such evidence and even in response to Freedom of Information Act suits. “I think there are other statutes that have already crossed this bridge,” he said.
One wrinkle in the case came from several FBI agents sued personally for their actions related to the surveillance. A lawyer for those agents, Catherine Carroll, urged the justices not to put the agents in the position of being unable to use the classified evidence to defend themselves.
“I think it’s undisputed that would violate the individual defendants’ jury trial rights and due process rights,” she said.
Justice Amy Coney Barrett, another Trump appointee, also seemed troubled by that aspect of the case.
“What happens to the individual defendants? … They just go in with their hands tied behind their backs and they are just sitting ducks?” she asked.
Alito clearly agreed. “How can that be consistent with due process?” he asked. “That’s the star chamber.”
Arulanantham said there was no simple answer to that problem, which pits his clients’ rights against those of the agents. But he called that ultimate standoff “very, very unlikely to happen” and said the government could assume liability on behalf of the agents, as it typically does in such cases.
By the end of the two-hour argument, the justices seemed to be moving toward vacating the 9th Circuit’s decision about FISA’s reach and telling the appeals court to look again at whether the suit could fairly proceed based on evidence the government is not claiming is a state secret.
That sort of decision seems likely to spawn at least another year or two of litigation at the appeals court, almost guaranteeing that the slow-moving case — now in its fourth presidential administration — will remain alive more than 20 years after the events that triggered the suit.
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By: Josh Gerstein
Title: Justices seek narrow ruling in mosque surveillance case
Sourced From: www.politico.com/news/2021/11/08/justices-narrow-ruling-mosque-surveillance-520312
Published Date: Mon, 08 Nov 2021 16:01:39 EST
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