State Secrets Clash Draws U.S. Supreme Court Review

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The U.S. Supreme Court agreed to consider whether the federal government can defeat lawsuits over its surveillance efforts by declaring that key information is too sensitive to be turned over in litigation.

The justices said they will hear the government’s appeal in a lawsuit by three California Muslims who say they were targeted in an FBI investigation because of their religion. The appeal, filed by the Trump Justice Department and taken over by the Biden administration, contends a lower court’s ruling against the government puts national security at risk.

At issue is whether the government can invoke the so-called state secrets privilege, which in other contexts gives the government broad power to force dismissal of cases that depend on sensitive information.

The San Francisco-based federal appeals court said that in surveillance cases the privilege must give way to the procedures under the 1978 Foreign Intelligence Surveillance Act. That law lets a judge review the disputed information in a closed-door hearing to decide whether the surveillance was warranted.

The appeals court decision left intact part of the lawsuit pressed by the three men, who say the FBI violated their constitutional rights by using a confidential informant to covertly gather information about Muslims in their communities in 2006 and 2007.

The case, which the court will hear in the nine-month term that starts in October, is FBI v. Fazaga, 20-828.

©2021 Bloomberg L.P.

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