SCOTUS Hears Oral Arguments On Case Over FBI Surveillance

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On Monday, the Supreme Court heard oral arguments for a case involving a Muslim community and the FBI.

As reported by CBS News, “The Supreme Court on Monday grappled with whether to allow a case brought by three Muslim men against the FBI to proceed, with the men arguing the federal government targeted them and their Southern California community for surveillance based on their religion.”

The arguments lasted over two hours, and the justices reportedly appeared most likely to put forward a narrow decision. 

The outlet noted that a federal appeals court permitted the issues brought forward by the men to go forward, and the federal government wanted the Supreme Court to consider that ruling. 

“The case, which was brought against the bureau and five agents in 2011, turns on whether a provision of the Foreign Intelligence Surveillance Act (FISA) displaces the state-secrets privilege, which was invoked by the federal government in seeking to block the suit,” CBS News reported. 

Ballotpedia explained the case:

Three residents of Southern California who practice Islam filed a class action lawsuit in U.S. district court against the U.S. government, alleging that the Federal Bureau of Investigation (FBI) paid a confidential informant to surveil Muslims based solely on their religious identity for more than a year as part of a counterterrorism investigation, and that the program included unlawful searches and anti-Muslim discrimination. The U.S. government asserted the state-secrets privilege and moved to dismiss the case. The district court dismissed all but one of the plaintiffs’ claims. On appeal, the 9th Circuit affirmed in part and reversed in part the district court’s judgment and remanded the case for further proceedings. 

The question posed is, “Whether Section 1806(f) displaces the state-secrets privilege and authorizes a district court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence.”

“The problem is that now the government takes a much stronger view of what state-secrets doctrine is,” Justice Neil Gorsuch told Deputy Solicitor General Edwin Kneedler, who was arguing for the FBI.

Gorsuch also noted that there is a “pretty good argument” that the federal government was utilizing the state-secrets entitlement “as a means to dismiss the case.” 

Justice Stephen Breyer questioned, ”A plaintiff sues government officials and says: You have unlawfully been wiretapping or surveying, whatever. OK? The government goes back and says: Judge, we have a good reason for doing that wiretapping, and we don’t want to tell people what it is. Doesn’t the judge — shouldn’t he still look to see if they’re right?”

“My point,” he later said, “is there should be a way to look at the information for the court and decide what to do.”

According to Ballotpedia, “The Supreme Court began hearing cases for the term on October 4, 2021. The court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.”

The Supreme Court heard another case on Tuesday regarding the execution of an inmate. 

As reported by The Daily Wire in September, the Supreme Court temporarily blocked the execution of a man on death row because his desire to have his pastor lay hands on him and say prayers as he died was not fulfilled.

The Supreme Court’s order said at the time: 

The application for stay of execution of sentence of death presented to Justice Alito and by him referred to the Court is granted. The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The Clerk is directed to establish a briefing schedule that will allow the case to be argued in October or November 2021. 

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