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Supreme Court to rule on FBI's move to block Muslim civil rights suit

The case involves the FBI's use of an informant who posed as a convert to Islam after the Sept. 11 terrorist attacks and attended mosques in California.
Image: The FBI headquarters in Washington on Nov. 1, 2017.
The FBI headquarters in Washington on Nov. 1, 2017.J. David Ake / AP file

The Supreme Court agreed Monday to take up the federal government's claim that allowing a civil rights lawsuit filed by Muslims in California to proceed would reveal secrets that could damage national security.

The case involves the FBI's use of an informant who posed as a convert to Islam after the Sept. 11 terrorist attacks and attended mosques for more than a year in Orange County. According to the lawsuit, he struck up conversations and attended meetings and lectures, sometimes secretly recording them.

The effort "explicitly targeted Muslims because of their religion," violating their religious freedom, a lawyer for the Muslims told the Supreme Court.

"The explicit purpose of this operation was to gather information on Muslims in Orange County — not terrorists, spies, or even ordinary criminals, but Muslims," they said.

The Justice Department moved to block the suit in federal court by asserting the state secrets privilege, which courts have recognized for more than a hundred years. Revealing evidence about whether any particular person was the subject of an FBI counter-terrorism investigation, "the reasons for any such investigation, and the particular sources and methods used" would harm national security, government lawyers said in their Supreme Court submission.

A federal judge dismissed the lawsuit, but the 9th U.S. Court of Appeals reversed that ruling. It said the state secrets privilege was displaced by a federal law governing evidence gathered with the permission of the Foreign Intelligence Surveillance Court.

The appeals court said the judge could review the evidence privately and decide whether it must be kept secret.

Such a ruling would allow lawsuits to "dodge the state secrets privilege," the Justice Department said in an appeal filed by the Trump administration and continued by the Biden administration.

The Supreme Court will hear the case in the fall, during its next term.