U.S. Supreme Court

SCOTUS will hear case involving FBI surveillance of Muslim community and state secrets privilege

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The U.S. Supreme Court on Monday agreed to consider the government’s ability to invoke the state secrets privilege to defeat a lawsuit accusing the FBI of illegally spying on the Muslim community.

The Supreme Court agreed to hear FBI v. Fazaga, a case brought by three Muslim men in California who claim that the government spying was based solely on their religion, SCOTUSblog reports here and here.

The plaintiffs allege that the FBI told a confidential informant to target Muslims who appeared more devout because they were more suspicious.

The government contends that the case must be dismissed under the state secrets privilege, which allows the United States to withhold evidence that would damage national security. When litigating a case without the evidence could nonetheless pose an unacceptable risk of disclosing state secrets, the suit must be dismissed.

The plaintiffs contend that a provision of the Foreign Intelligence Surveillance Act displaces the privilege, allowing the court to conduct a review of government evidence derived from electronic surveillance to determine whether it was legally collected.

A federal judge had ruled for the government, holding that the FBI would have to rely on privileged material to defend the lawsuit, the Lawfare blog previously reported. The 9th U.S. Circuit Court of Appeals at San Francisco reversed, holding that a federal judge should use the FISA law to consider evidence, in camera and ex parte, relating to electronic surveillance.

The SCOTUSblog case page for FBI v. Fazaga is here.

CNN and the Hill reported on the cert grant.

The Supreme Court previously agreed to review a second state secrets case involving Abu Zubaydah, a former associate of Osama bin Laden being held at Guantanamo Bay. Zubaydah is seeking discovery about interrogation techniques and details of his treatment at a black site in Poland from two CIA contractors.

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