A unanimous Supreme Court opinion today impeded three Muslim Americans in their religious discrimination suit against the FBI. The underlying ruling, while narrow, missed a chance to curtail the states secrets privilege, which effectively allows the government to spoil a case against it by making national security claims.
This case arose from the FBI’s targeting of a mosque and Muslims in Southern California for surveillance without any probable cause that the government is willing to discuss. The FBI paid an informant to infiltrate the mosque and plant listening devices.
No terrorists were found. But if the FBI acted carelessly, then its actions would amount to a manipulative infiltration of a religious minority and the vandalization of their right to the free exercise of religion.
At the heart of this case is the latitude that should be given to the state secrets privilege, a common law principle that allows the government to withhold classified information from a trial if the release of that information would harm national security.
The three plaintiffs lost their religious discrimination suit in federal district court, which dismissed the suit on the grounds that disclosure of counter-intelligence information that was vital to an evaluation of these claims would threaten national security. The Ninth Circuit Court of Appeals reversed, finding that Section §1806(f) of the Foreign Intelligence Surveillance Act “displaced” the states secrets privilege.
That section directs a judge to hold an in camera and ex parte review of the secret evidence if the Attorney General sends an affidavit affirming that an adversarial hearing of the evidence in open court would harm national security. With individual FBI agents willing to invoke their Seventh Amendment right to a jury trial in which evidence is heard in public, the state secrets privilege effectively short-circuits the law and prevents any trial at all.
The Supreme Court unanimously ruled that the Ninth Circuit Court of Appeals erred in finding that §1806(f) displaces or even has any effect on the state secrets privilege. In theory, the plaintiffs can have their day in appeals court – again – by challenging the dismissal of the suit on state secrets grounds.
"We’re sorry to see the Court did not take the opportunity to narrow the scope of the common-law state-secrets doctrine in this case,” said Gene Schaerr, PPSA general counsel. “If it had, it could have provided badly needed guidance to the lower courts to prevent the use of the state-secrets doctrine as a shield in cases where the government has infringed on American’s sacred First and Fourth Amendment rights. We hope that in future cases, the Court will limit this doctrine to not unduly infringe on those rights."