Supreme Court hears “state secrets” case, opinions appear split

The Supreme Court did not appear to reach a solid resolution in a case regarding “state secrets”. The court heard arguments in the case of FBI v. Fazaga Monday. Three Muslim men had filed a class-action lawsuit claiming the FBI spied on them and hundreds of others in a surveillance operation that began several years after the Sept. 11, 2001 attacks. The men said they were spied on solely because of their faith.

A district court dismissed almost all the men’s claims after the government said allowing the case to go forward could reveal “state secrets”. Those secrets include whom the government was investigating and why. However, an appeals court reversed the district court decision in 2019. The appeals court said the district court should have privately examined the evidence the government said included state secrets.

“The district court did not look at the actual underlying evidence,” Ahilan T. Arulanantham, an attorney for the men, said Monday. “The district court didn’t explain why, when we said we would move for summary judgment on the religion claims, didn’t say why that would still somehow lead to inevitably the disclosure of information, you know, unless they carried the risk and it was them that caused the risk.”

A number of the justices suggested they were inclined to side with the government. However, they also seemed to favor sending the case back to a lower court for additional proceedings.

Justice Brett Kavanaugh suggested that sending the state secrets case back to a lower court would let issues be “fleshed out and come back” to the Supreme Court later. Justice Elena Kagan seemed to agree, saying the lower court’s decision was “in some important way premised on an incorrect understanding of when dismissal is appropriate in a state secrets case.” Justices Stephen Breyer, Sonia Sotomayor and Neil Gorsuch also asked about sending the case back at various points during arguments.