Supreme Court justices closely divided in case on state secrets, anti-Muslim discrimination by FBI

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The Supreme Court justices Monday appeared closely divided in a case about whether the FBI illegally discriminated against and spied on a California Muslim community – and whether the agency can shut down a lawsuit by claiming litigating it would harm national security. 

The case stems from an FBI investigation between 2006 and 2007 in which paid informant Craig Monteilh posed as a Muslim convert in an Orange County, Calif., Islamic community while using electronic surveillance against many of the people he met. 

But Monteilh's behavior, according to the Muslims against whom the surveillance was targeted, became concerning to them. 

So they reported the FBI informant – to the FBI – for alleged "attempts to incite violence." 

In this Nov. 6, 2020, file photo, the Supreme Court is seen at sundown in Washington. The justices heard a case Monday about alleged religious distrimination against Muslims by the FBI, which the agency is trying to shut down on alleged national security grounds.  (AP Photo/J. Scott Applewhite, File) (AP Photo/J. Scott Applewhite, File)

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The subjects of the surveillance eventually sued the FBI and some of the individual agents who took part in the operation, alleging that their community was only targeted because of their religion. But the FBI claimed "state secrets privilege" in an attempt to shut down the case, arguing that the disclosure of the information surrounding the case would harm national security.

 A district court sided with the FBI, but the Ninth Circuit Court of Appeals overturned that ruling and sided with the plaintiffs. 

The case is the second on the state secrets privilege that the court's heard in just a few weeks, indicating that the justices may have significant concerns about the status of the doctrine. Last month they considered whether the government could use the state secrets privilege in a case about the alleged torture of detainees at Guantanamo Bay. 

At times Monday, government lawyer Edwin Kneedler struggled to defend the government's position against an onslaught of questions from Justices Elena Kagan, Neil Gorsuch and Sonia Sotomayor. 

Justice Sonia Sotomayor complained multiple times Monday that government lawyer Edwin Kneedler was not answering her questions as he defended the FBI in a case of alleged religious discrimination. (Supreme Court of the United States)

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Sotomayor in particular complained repeatedly that Kneelder was not answering her questions. 

But perhaps the most contentious exchange happened later between Ahilan Arulanantham, a lawyer for the plaintiffs, and Justice Amy Coney Barrett. 

"What happens to the individual defendants?" Barrett asked, referring to the individual FBI agents who were also sued for religious discrimination in the case. 

"Let's say that the evidence that they can use to defend themselves against the claim that they religiously discriminated is in this body of evidence that's protected by the state secrets doctrine," Barrett said. "And you're saying dismissal is not a remedy. So they just go in with their hands tied behind their back and they just are sitting ducks?"

Supreme Court nominee Amy Coney Barrett testifies during the third day of her confirmation hearings before the Senate Judiciary Committee on Capitol Hill in Washington, Wednesday, Oct. 14, 2020. Barrett Monday warned that (Andrew Caballero-Reynolds/Pool via AP) (AP)

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Barrett warned that the plaintiffs' potential remedy would harm the "due process rights of the individual defendants" potentially as much as the alleged illegal spying harmed the rights of the plaintiffs. 

Justice Samuel Alito also appeared to be suspicious of the plaintiffs' arguments. Justice Stephen Breyer seemed more suspicious of the case made by Kneedler and the government. Chief Justice John Roberts, along with Justices Brett Kavanaugh and Clarence Thomas, meanwhile, did not appear to tip their hands. 

The case will likely be decided by late June 2022, when the court's current term will come to a close. 

Fox News' Bill Mears contributed to this report.