WEBVTT - Religious Rights and State Secrets at SCOTUS 0:00:00.400 --> 0:00:04.600 From bloom Bird Radio. Should a death row inmate be 0:00:04.720 --> 0:00:07.480 able to have his pastor pray out loud and lay 0:00:07.560 --> 0:00:10.840 hands on him during his execution. It's a question the 0:00:10.880 --> 0:00:14.360 Supreme Court Jelstice is struggled with this week, and it 0:00:14.440 --> 0:00:18.239 led some jealstic is typically solicitous of religious rights to 0:00:18.360 --> 0:00:22.800 express concerns about the possibilities of gamesmanship and a flurry 0:00:22.800 --> 0:00:26.799 of last minute filings by death row inmates. Here are jealostice, 0:00:26.800 --> 0:00:34.279 says Clarence Thomas and Samuel Alito. Can one's repeated filing 0:00:34.520 --> 0:00:38.239 of complaints, particularly at the last minute, not only be 0:00:38.400 --> 0:00:42.560 seen as evidence of gaming of the system, but also 0:00:42.600 --> 0:00:48.080 of um the sincerity of religious beliefs. What's going to 0:00:48.159 --> 0:00:51.839 happen when the next prisoner says that I have a 0:00:51.920 --> 0:00:55.560 religious belief that he should touch my knee, he should 0:00:55.600 --> 0:00:59.320 hold my hand, he should put his hand over my heart. 0:00:59.840 --> 0:01:03.560 But other justices, such as Sonya Soto Mayor, seemed to 0:01:03.560 --> 0:01:08.039 see the inmates request as reasonable his desire to have 0:01:08.240 --> 0:01:12.240 the pastor in the execution chamber when he's dying, because 0:01:12.280 --> 0:01:16.160 the whole purpose of the religious belief is that you 0:01:16.200 --> 0:01:18.880 should have a pastor to help guide you to the 0:01:18.920 --> 0:01:21.960 other place. Joining me is Richard Garnett, a professor at 0:01:21.959 --> 0:01:25.160 Notre Dame Law School and director of the Program on Church, 0:01:25.280 --> 0:01:28.840 State and Society. Rick, this isn't about the First Amendment. 0:01:28.920 --> 0:01:33.120 Tell us about the law issue here. So this law, 0:01:33.280 --> 0:01:37.160 this Religious Land Use and Institutionalized Person's Act, was enacted 0:01:37.160 --> 0:01:39.520 by Congress a couple of decades ago. It had the 0:01:39.520 --> 0:01:43.679 purpose of providing additional protections to prisoners in the United States, 0:01:43.720 --> 0:01:46.319 protections that are more expansive than the ones that the 0:01:46.319 --> 0:01:49.040 Constitution provides. In this particular case, this is kind of 0:01:49.040 --> 0:01:51.440 the culmination of a number of disputes that have come 0:01:51.480 --> 0:01:53.880 to the Supreme Court in recent years where states have 0:01:53.960 --> 0:01:57.080 struggled with their execution procedures and specifically have kind of 0:01:57.120 --> 0:02:00.280 bounced around about how they're going to handle the sense 0:02:00.400 --> 0:02:03.920 of spiritual advisors and clergy in the execution chamber. Why 0:02:03.960 --> 0:02:08.200 have there been so many cases with questions about ministers 0:02:08.240 --> 0:02:12.560 being in the execution chamber. There's certainly a long tradition 0:02:12.760 --> 0:02:16.400 of ministers and clergy being present during executions now in 0:02:16.480 --> 0:02:20.040 the United States, in recent decades, as the execution process 0:02:20.360 --> 0:02:23.480 has become more sort of closed off, and as obviously 0:02:23.480 --> 0:02:26.200 we moved away from public executions towards private ones, and 0:02:26.240 --> 0:02:30.800 they're very strictly choreographed and controlled. It's not surprising that 0:02:30.880 --> 0:02:34.120 this issue comes up, particularly once you have this federal 0:02:34.200 --> 0:02:37.800 law in place that does explicitly protect the religious freedom 0:02:37.880 --> 0:02:40.160 rights of prisoners. Here, what we're dealing with, if you 0:02:40.160 --> 0:02:42.960 want to look sort of just in the last few years. 0:02:43.360 --> 0:02:45.079 What makes this case a little tricky to follow is 0:02:45.120 --> 0:02:48.760 the fact that the states have kind of changed practices. So, um, 0:02:48.800 --> 0:02:52.600 you know you have uh, one state sort of um 0:02:53.000 --> 0:02:57.200 denying access to a h a clergy person, uh to 0:02:57.280 --> 0:03:01.560 condemns selection altogether. Then the court says you can't do that. 0:03:02.040 --> 0:03:04.520 Then um, uh that as you can't do it in 0:03:04.520 --> 0:03:07.760 a denominationally discriminatory way. If you're gonna let Christian people 0:03:07.800 --> 0:03:09.760 have their ministers, then you can't deny it to people 0:03:09.800 --> 0:03:12.399 who are non Christian. So then the state says, well, 0:03:13.240 --> 0:03:14.960 if you're telling us we have to let in just 0:03:15.520 --> 0:03:17.840 any requested clergy member, we're going to change our policy 0:03:17.840 --> 0:03:21.080 and have no clergy coming in at all. Um. And 0:03:21.120 --> 0:03:23.040 then states change that practice and say, well, no, we'll 0:03:23.080 --> 0:03:25.600 let clergy be present, but they can't touch or they 0:03:25.600 --> 0:03:29.560 can't audibly pray um, So, there is kind of a 0:03:29.600 --> 0:03:31.760 tangled history up and down, and I think the hope 0:03:31.800 --> 0:03:35.040 for some of us who's been following this case is 0:03:35.080 --> 0:03:38.200 that the Court will clarify things a bit. So tell 0:03:38.240 --> 0:03:43.800 us about the concerns expressed by the justices during your arguments. Well, 0:03:43.920 --> 0:03:46.160 one thing that was clearly on the justices minds, and 0:03:46.200 --> 0:03:48.920 including on the minds of justices who have a record 0:03:49.040 --> 0:03:52.280 of being solicitous of religious liberty, was you know, where 0:03:52.320 --> 0:03:54.400 is this going to lead? How do we draw lines 0:03:54.480 --> 0:03:57.320 between the kinds of clergy access that are permissible and 0:03:57.360 --> 0:04:00.080 the ones that might be disruptive or unsettling or and 0:04:00.200 --> 0:04:03.640 dangerous to the procedure. Obviously this is a very sensitive context, 0:04:03.680 --> 0:04:05.640 and the Justice has recognized this. The government has a 0:04:05.640 --> 0:04:09.640 strong interest in wanting to minimize the risk of disruptions 0:04:09.720 --> 0:04:12.280 during an execution, especially because, as you know, there's been 0:04:12.320 --> 0:04:16.360 some high profile executions where the process has been botched 0:04:16.400 --> 0:04:18.880 and the inmates have suffered, and so obviously states want 0:04:18.880 --> 0:04:21.520 to minimize to the extent they can, the risk of 0:04:21.560 --> 0:04:24.599 that happening. But as some of the justices, like Justice 0:04:24.600 --> 0:04:28.160 so Domior in Justice Kagan mentioned in oral argument, Congress 0:04:28.160 --> 0:04:31.359 has made it clear that they want states to be 0:04:31.440 --> 0:04:34.839 solicitous of religious freedom, even when it's inconvenient, and even 0:04:34.839 --> 0:04:37.520 when it might be a bit challenging. States are expected 0:04:37.560 --> 0:04:40.400 to do what they can to accommodate religious freedom. So 0:04:40.560 --> 0:04:42.720 if you listen to the oral arguments, a lot of 0:04:42.720 --> 0:04:45.360 the for lack of a better word, more conservative justices 0:04:45.440 --> 0:04:49.479 were pressing the lawyer for Mr Ramirez, saying, Okay, where 0:04:49.520 --> 0:04:51.599 would the line be. It's one thing you wanted to 0:04:51.640 --> 0:04:54.440 have a pastor touching the inmate on his foot, but 0:04:54.520 --> 0:04:55.960 what if you wanted to touch the inmate on his 0:04:56.040 --> 0:04:57.840 head or on his heart. And you say you want 0:04:57.880 --> 0:05:00.760 to have audible prayer. That's great, but what if the 0:05:00.800 --> 0:05:04.240 minister starts yelling really loudly and interfering with the communication 0:05:04.320 --> 0:05:06.560 and so on. So they were struggling with the line 0:05:06.640 --> 0:05:09.120 drawing problem. The other thing that you heard the justices 0:05:09.240 --> 0:05:13.000 concerned about was that condemned inmates would use last minute 0:05:13.000 --> 0:05:16.359 religious liberty claims as a way to kind of secure 0:05:16.440 --> 0:05:18.640 delays in their execution. That is, that there would be 0:05:18.720 --> 0:05:21.000 bad faith claims or it's just as Thomas put it, 0:05:21.040 --> 0:05:22.960 there the efforts to gain the system where you know, 0:05:23.000 --> 0:05:25.320 at the last minute and inmate would say, wait a minute, 0:05:25.320 --> 0:05:27.200 I have decided I need to have my pastor present 0:05:27.480 --> 0:05:30.000 and thereby sort of require the state to have to 0:05:30.080 --> 0:05:32.200 change its procedures or put things off. And it's a 0:05:32.240 --> 0:05:35.760 long standing concern and death pedalty litigation that inmates might 0:05:36.200 --> 0:05:38.960 file last minute complaints and possibly delay the process. But 0:05:39.000 --> 0:05:40.520 of course the court has been dealing with those for 0:05:40.560 --> 0:05:43.159 a long time. After the oral arguments, did you get 0:05:43.160 --> 0:05:45.440 a feel for how they might rule for me? It 0:05:45.480 --> 0:05:47.400 was difficult to come away from the oral argument with 0:05:47.440 --> 0:05:49.680 any clear view of what would happen. But I guess 0:05:49.720 --> 0:05:52.760 I did think that, notwithstanding the line drawing problems that 0:05:53.000 --> 0:05:56.479 various justices were concerned about, that the arguments did sort 0:05:56.480 --> 0:05:59.560 of circle back to the key point that Congress has 0:05:59.600 --> 0:06:04.080 told courts that they are supposed to insist that state 0:06:04.120 --> 0:06:07.360 government accommodate prisoners religious freedom to the extent they can. 0:06:07.680 --> 0:06:11.280 And so if we have a record into Ramirez case 0:06:11.480 --> 0:06:14.719 that shows that it's possible to accommodate requests like these 0:06:14.880 --> 0:06:18.279 in ways that don't disrupt prison practices, I suspect that's 0:06:18.279 --> 0:06:21.880 what the justices will say. The Act requires justice. Amy 0:06:21.920 --> 0:06:26.440 Coney Barrett expressed concerns that if prisons didn't allow this, 0:06:27.000 --> 0:06:29.560 then perhaps the next step in the future would be 0:06:30.000 --> 0:06:33.840 prisons barring worship services. She was and like a lot 0:06:33.880 --> 0:06:35.839 of the justices. Again, this is something we see not 0:06:35.960 --> 0:06:37.960 just in the Supreme Court but in law generally, is 0:06:38.000 --> 0:06:40.760 that judges, when they are formulating rules and when they're 0:06:40.760 --> 0:06:43.600 applying rules, they're often thinking about the next case. Where 0:06:43.640 --> 0:06:45.960 does this go. So a court might think, if we 0:06:46.000 --> 0:06:49.919 allow Texas to say no ministers may touch an inmate 0:06:50.080 --> 0:06:53.560 in the execution chamber because that's too sensitive, then maybe 0:06:53.640 --> 0:06:55.479 a couple of years and other state decides, you know what, 0:06:55.680 --> 0:06:59.320 allowing ministers to be physically present for church services is 0:06:59.360 --> 0:07:00.760 too dangerous. We're just going to have to do it 0:07:00.800 --> 0:07:03.159 all by zoom. Now that's a concern about things going 0:07:03.400 --> 0:07:05.440 in one direction, and then of course the concern going 0:07:05.480 --> 0:07:07.080 in the other direction is like, okay, well, if we 0:07:07.160 --> 0:07:10.520 say that this act guarantees a religious inmates right to 0:07:10.560 --> 0:07:13.800 have physical touch and oral prayer in the execution chamber, 0:07:14.040 --> 0:07:17.400 then the next inmate is going to say that there 0:07:17.400 --> 0:07:19.400 has to be physical touch. Like I said on the head, 0:07:19.680 --> 0:07:22.600 there's always this concern about how to find lines, how 0:07:22.600 --> 0:07:25.560 to anticipate the next case that's not unusual. Did it 0:07:25.600 --> 0:07:28.400 strike you as unusual that some of the justices who 0:07:28.400 --> 0:07:32.280 are normally solicitous of religious rights seem to have real 0:07:32.360 --> 0:07:35.920 concerns in the death penalty context. Yeah, I wouldn't put 0:07:35.920 --> 0:07:38.080 it quite so starkly. It was just clear that those 0:07:38.120 --> 0:07:41.880 justices were anxious about some of the possible implications and 0:07:41.920 --> 0:07:44.200 the line drawing problems. One of the things that's worth 0:07:44.200 --> 0:07:46.640 emphasizing is that in the Supreme Court, when it comes 0:07:46.640 --> 0:07:50.679 to religious freedom under this particular federal statute, the justices 0:07:50.720 --> 0:07:53.480 have not been divided on ideological lines. The last one, 0:07:53.520 --> 0:07:57.080 called Hope versus Hobbs, involved a prisoner in Arkansas who 0:07:57.080 --> 0:08:00.320 wanted an exemption from a no beard's rule because of 0:08:00.320 --> 0:08:02.440 his religious faith, and he won nine to zero, and 0:08:02.480 --> 0:08:05.320 as an earlier case called Cutter, again not divided on 0:08:05.320 --> 0:08:08.400 on ideological grounds. So even though the justices obviously disagree 0:08:08.400 --> 0:08:11.760 about many criminal justice issues and about capital punishment, there's 0:08:11.800 --> 0:08:15.400 been something like a consensus that federal law requires states 0:08:15.440 --> 0:08:19.640 to accommodate religious objectors and religious believer special needs even 0:08:19.640 --> 0:08:22.040 in prison. I think this case, just because the death 0:08:22.040 --> 0:08:25.800 penalty context is so sensitive, and because the justices have 0:08:25.840 --> 0:08:28.400 a lot of experience with these last minute appeals that 0:08:28.480 --> 0:08:30.640 some of them were nervous about the implications of this 0:08:30.680 --> 0:08:33.600 particular claim. But I'm hoping in any event, that those 0:08:33.600 --> 0:08:36.680 concerns were answered and that you know, they'll continue with 0:08:36.720 --> 0:08:40.080 the practice of against sort of a consensus view that 0:08:40.320 --> 0:08:43.640 prisoners religious freedom rights should be protected to the extent possible. 0:08:44.280 --> 0:08:47.679 So I have to say I'm surprised in this instance 0:08:47.720 --> 0:08:53.679 the Supreme Court halted his execution and fast tracked the 0:08:53.840 --> 0:08:57.959 arguments as long as the minister could be in the room. 0:08:58.120 --> 0:09:03.520 Is it so critical that the minister touch the innate? Well, 0:09:03.520 --> 0:09:05.960 all so interesting? I mean, this isn't this is It's 0:09:05.960 --> 0:09:09.200 an important point about religious freedom cases generally, is that 0:09:09.760 --> 0:09:13.120 UM courts have a have a challenge and that the 0:09:13.200 --> 0:09:16.760 religious freedom protections that exist in our laws exist for everyone, 0:09:17.520 --> 0:09:23.319 including for people whose religious practices are less familiar to us. So, um, 0:09:23.440 --> 0:09:28.360 you know, Ramirez and his pastor assert and I don't 0:09:28.360 --> 0:09:30.160 think we have any reason to think that their inn 0:09:30.240 --> 0:09:33.800 sincere that it is part of their religious belief, that 0:09:33.880 --> 0:09:37.600 the that the laying on of hands is an important 0:09:37.640 --> 0:09:42.000 part of UM of prayer for another person. That's not 0:09:42.040 --> 0:09:43.920 to say that prayer can't happen without it. But it's 0:09:43.960 --> 0:09:47.280 an important Uh, it's an important component of how they 0:09:47.360 --> 0:09:50.240 think about praying for other people. So you you lay 0:09:50.400 --> 0:09:52.800 you lay hands on their bodies. And that's the practice 0:09:52.840 --> 0:09:55.360 I was familiar with from when I was a kid, 0:09:55.360 --> 0:09:58.800 going to Assembly of God's schools and so on. Um, 0:09:59.080 --> 0:10:01.280 So I don't think that's so unusual. But you know, 0:10:01.320 --> 0:10:04.960 you could imagine um, somebody who said, well, you know 0:10:05.000 --> 0:10:07.200 what has to happen for me and my execution chamber 0:10:07.280 --> 0:10:13.240 is that um, um, my minister, my spiritual advisor has 0:10:13.280 --> 0:10:18.000 to be allowed to um chant and light candles and 0:10:18.120 --> 0:10:22.640 burn incense and perhaps play some music. And that's that 0:10:22.720 --> 0:10:25.360 might be more disruptive. So, and the problem, it's not 0:10:25.400 --> 0:10:27.920 a problem. It's just the fact that for courts that 0:10:27.960 --> 0:10:30.320 are trying to administer these religious freedom laws, they can't 0:10:30.320 --> 0:10:33.560 really pick and choose among the religious beliefs that they 0:10:33.559 --> 0:10:37.160 happen to share. Instead, they have to ask, is the 0:10:37.960 --> 0:10:41.160 is the claimants sincere? If they're not sincere, they don't 0:10:41.160 --> 0:10:44.240 get the benefit of these laws. And is the claimants 0:10:44.280 --> 0:10:48.480 belief actually being burdened. If there's no real burden, then 0:10:48.520 --> 0:10:51.200 they don't get the benefit of these laws, and if 0:10:51.240 --> 0:10:54.640 they are being burdened, and if their belief is sincere, 0:10:55.520 --> 0:10:59.400 then the burden is on the government to justify why 0:10:59.440 --> 0:11:03.240 it's doing what it's doing. And um, you know, the 0:11:03.240 --> 0:11:05.720 government has to have have to point to a what 0:11:05.800 --> 0:11:09.520 the law calls a compelling interest to justify any kind 0:11:09.520 --> 0:11:12.680 of burdens on sincere religious practice, and they have to 0:11:12.720 --> 0:11:16.000 convince the court that there aren't other avenues that are 0:11:16.040 --> 0:11:19.280 available that would make it possible for them to to 0:11:19.360 --> 0:11:21.880 accomplish their interests. So that was what a lot of 0:11:21.880 --> 0:11:23.880 the oral argument was about. You know, some of the 0:11:23.960 --> 0:11:28.480 justices were pressing the lawyer for the state, Okay, what 0:11:28.559 --> 0:11:33.920 exactly is it that Texas says is the important interest 0:11:34.360 --> 0:11:39.120 that requires them to not permit touching by a minister 0:11:39.720 --> 0:11:42.680 or oral prayer? And why is it that Texas thinks 0:11:42.720 --> 0:11:48.079 there are no less burdensome procedures that could adequately ensure 0:11:48.520 --> 0:11:54.079 that the execution process goes off smoothly. Um, And and 0:11:54.400 --> 0:11:56.640 again there's no there's there's no way around it. This 0:11:56.720 --> 0:11:59.079 is the inquiry that Congress has told courts to do. 0:11:59.120 --> 0:12:01.240 That there in the sense they are they're told they're 0:12:01.240 --> 0:12:03.520 supposed to second guess the government They're not supposed to 0:12:03.600 --> 0:12:06.120 just defer to the government when it says, look, we 0:12:06.160 --> 0:12:09.120 want to do this because it's convenient, or we don't 0:12:09.120 --> 0:12:10.839 want to do that because it's in convenient. That's not 0:12:10.880 --> 0:12:15.160 good enough if there's a bird unsincere religious exercise. At 0:12:15.200 --> 0:12:20.040 the same time, it's clear that um prison administrators and 0:12:20.040 --> 0:12:24.439 so on are allowed to enact regulations to keep things safe, 0:12:24.640 --> 0:12:28.320 and so the Court is aware of that. But nonetheless 0:12:28.320 --> 0:12:32.200 it has to carry out its statutory duty and and 0:12:32.320 --> 0:12:36.200 vindicate to the extent reasonably possible the religious freedom interests, 0:12:36.280 --> 0:12:40.080 even of somebody who's been condemned to be executed. Thanks Rick. 0:12:40.480 --> 0:12:45.200 That's Professor Richard Garnett of Notre Dame Law School. For 0:12:45.280 --> 0:12:47.680 the second time in a little over a month, the 0:12:47.760 --> 0:12:52.120 Supreme Court considered a case involving state secrets. This time, 0:12:52.160 --> 0:12:55.400 the FBI was being sued for spying on the Muslim 0:12:55.440 --> 0:12:58.880 community at a mosque in Irvine, California, starting in two 0:12:58.920 --> 0:13:03.280 thousand six. The government invoked the state secrets privilege, claiming 0:13:03.280 --> 0:13:05.560 that in order to defend itself, it would have to 0:13:05.600 --> 0:13:09.440 reveal state secrets. Justice Neil gors It suggested that the 0:13:09.520 --> 0:13:12.800 government couldn't have it both ways, and so the government's 0:13:12.840 --> 0:13:15.800 really a choice. Doesn't want to disclose the evidence and 0:13:15.800 --> 0:13:18.079 defend itself or does it want to let a judgment 0:13:18.080 --> 0:13:21.600 at torqu Churchment go ahead against it and and keep 0:13:21.880 --> 0:13:25.040 keep national security safe. Joining me is the attorney for 0:13:25.080 --> 0:13:28.360 the plaintiffs who argued at the Supreme Court. A. Helen 0:13:28.480 --> 0:13:31.120 are A Lana Thumb, co director of the Center for 0:13:31.200 --> 0:13:34.360 Immigration Law and Policy at u c l A Law School. 0:13:34.600 --> 0:13:38.120 Start by telling us about your clients. Clients are three 0:13:38.400 --> 0:13:43.160 men Muslim Americans who lived in southern California, Orange County 0:13:43.480 --> 0:13:47.559 in two thousand and six seven. Shakespeazaga with them the 0:13:47.679 --> 0:13:51.800 mom at the Orange County Foundation in Mission Viejo, which 0:13:51.840 --> 0:13:55.040 is not to San Diego. He's now in mem Tennessee. 0:13:55.600 --> 0:14:00.079 The other two, Rahim and Ali were congregants at the 0:14:00.160 --> 0:14:03.640 Center of Irvine, just a large mosque and Irvine, California. 0:14:03.880 --> 0:14:07.560 And they're all interesting, wonderful people. Shack Tazaga is also 0:14:07.920 --> 0:14:11.680 a license a therapist and originally in a recent immigrants 0:14:11.760 --> 0:14:14.040 but here now for more than thirty years. Pabi Molick 0:14:14.160 --> 0:14:17.120 is born and raised Orange County who's very sort of 0:14:17.160 --> 0:14:21.720 southern California kind of guys. A surfer, young Republican back then. Now, 0:14:22.360 --> 0:14:25.880 I guess the middle age Republicans. You also have a 0:14:25.920 --> 0:14:30.120 roteam of Egyptian immigrants, and I t person he's designed. Actually, 0:14:30.120 --> 0:14:32.960 I don't understand. It's something involving video games. He worked 0:14:32.960 --> 0:14:36.080 for Nintendo. Now tell us what happened at the mosque. 0:14:36.720 --> 0:14:41.480 The FBI sent an informant into actually something like eight 0:14:41.560 --> 0:14:46.440 or ten mosques in the southern California area for the purpose, 0:14:46.720 --> 0:14:49.560 according to that informant who has since come out, for 0:14:49.640 --> 0:14:54.800 the purpose of gathering information on Muslims, and his instructions 0:14:54.800 --> 0:14:58.760 were to gather information simply on Muslims, and then to focus, 0:14:58.840 --> 0:15:02.920 if at all, on religious leaders, on people who appeared 0:15:02.920 --> 0:15:06.040 more devout, like going to early morning prayer or changing 0:15:06.040 --> 0:15:08.800 their dress, people who you know, looked like they were 0:15:09.000 --> 0:15:11.760 it's not religious leaders, like social leaders, people who had 0:15:11.760 --> 0:15:14.640 influenced with youth, things like that. And he focused on 0:15:14.680 --> 0:15:16.400 the three of them, and he explains this in his 0:15:16.480 --> 0:15:19.320 declarations in the case because of their kind of connection 0:15:19.400 --> 0:15:23.000 to these different sort of profiles. So Shakepasag obviously being 0:15:23.040 --> 0:15:25.520 the mom of the mosque, Alimlis, a young man at 0:15:25.520 --> 0:15:28.080 this point, was just starting to embrace his faith, more 0:15:28.720 --> 0:15:31.040 so he started to dress a little bit more conservatively. 0:15:31.120 --> 0:15:34.880 He had studied Arabic abroad and studied Islam. Abdi Rahim 0:15:34.960 --> 0:15:37.000 actually I think sort of hadn't done anything, but the 0:15:37.200 --> 0:15:39.760 mom had asked him, said, Hey, here's a new person 0:15:39.800 --> 0:15:42.120 who's a convert. Do you want to kind of show 0:15:42.200 --> 0:15:45.000 him the ropes a little bit and teach him about Islam. 0:15:45.080 --> 0:15:46.960 And he was just living with a in a house 0:15:47.040 --> 0:15:50.880 with some other young Muslim guys who just played a 0:15:50.920 --> 0:15:54.960 lot of video games basically, and the informants started targeting 0:15:54.960 --> 0:15:57.080 all three of them for these reasons, you know. So 0:15:57.600 --> 0:15:59.880 he started spending a lot of time in abdio Rahim's apartment. 0:16:00.280 --> 0:16:04.800 He befriended Ali Malik and tried to continuate himself into 0:16:04.840 --> 0:16:07.640 his life, try and find out about his family, you know, 0:16:07.760 --> 0:16:10.240 if he had marital problems and things like that. There's 0:16:10.240 --> 0:16:12.600 what informants in the FBI system do. They try and 0:16:12.680 --> 0:16:15.800 find these things so they can use them to leverage 0:16:15.840 --> 0:16:19.880 people into giving information about their friends and neighbors. So 0:16:20.040 --> 0:16:23.080 he had interactions with them. There was no violence of 0:16:23.160 --> 0:16:26.360 any kind or anyone planning any terrorism or anything like that. 0:16:26.640 --> 0:16:29.560 And then over time, because of that, the informant tried 0:16:29.600 --> 0:16:32.680 to instigate that. So he tried to ask people first 0:16:32.720 --> 0:16:35.560 about jihad and about violent jihad, their views about the 0:16:35.600 --> 0:16:39.240 wars in Iraq and Afghanistan, and uniformly he was told 0:16:39.560 --> 0:16:42.960 that's not proper Islam, we don't believe in that, and 0:16:43.080 --> 0:16:44.760 kind of tried to be sent back on the path 0:16:45.080 --> 0:16:48.920 of studying the religion and not not focusing on those things. 0:16:48.960 --> 0:16:53.040 But he persisted and eventually he scared people, and so 0:16:53.120 --> 0:16:56.920 then actually both Ali Malik and Yaser Abdora he he 0:16:57.040 --> 0:17:01.200 specifically became scared of him, and they reported him both 0:17:01.240 --> 0:17:04.199 to the prominent community leader who's the head of the 0:17:04.440 --> 0:17:07.399 Cutlin American Islamic relations in l A who's on my lush, 0:17:07.600 --> 0:17:12.159 and also the FBI and who saw also called the 0:17:12.280 --> 0:17:16.160 FBI about this informant and then his kind of cover 0:17:16.320 --> 0:17:19.200 was loan. They also because he was continued to talk 0:17:19.200 --> 0:17:21.520 about these things, and they, I think we're very I 0:17:21.560 --> 0:17:23.600 think a combination of perhaps scared of him and think 0:17:23.640 --> 0:17:26.560 thoughts maybe he was an informant. Islamic Center Irvine actually 0:17:26.680 --> 0:17:29.639 got a protective order barring him from coming into the mosque, 0:17:30.000 --> 0:17:32.440 and then he became basically useless to the FBI and 0:17:32.520 --> 0:17:35.119 then something happened that we don't totally understand. He had 0:17:35.160 --> 0:17:37.639 some kind of falling out with them, and then he 0:17:37.720 --> 0:17:40.439 went public and his status was revealed in a criminal 0:17:40.520 --> 0:17:44.560 prosecution for immigration fraud. Was the only prosecution that came 0:17:44.600 --> 0:17:46.720 out of any of this, and that prosecution was itself 0:17:46.840 --> 0:17:49.560 dismissed on the government's motions. There's not a single conviction 0:17:49.640 --> 0:17:51.240 that came out of any of this, and then he 0:17:51.320 --> 0:17:54.480 went public with all the information. So you sued based 0:17:54.600 --> 0:17:58.720 on religious discrimination. What happened to your lawsuit? We sued 0:17:58.840 --> 0:18:03.119 under both religious emination and privacy violations. The government then 0:18:03.160 --> 0:18:05.680 came in and said, we promised we're not a spying 0:18:05.720 --> 0:18:09.080 on people solely because of their religion, but anything else 0:18:09.280 --> 0:18:11.959 that we would say in order to explain why actually 0:18:12.000 --> 0:18:14.760 what we're doing is lawful would require the disclosure of 0:18:14.800 --> 0:18:18.320 secret information. And because we can't defend ourselves with the 0:18:18.359 --> 0:18:22.000 secret information, your religion claims have to be dismissed under 0:18:22.040 --> 0:18:25.600 the state secrets doctrine. So the district court dismissed the case. 0:18:25.680 --> 0:18:29.119 The Ninth Circuit revived it. What was your argument before 0:18:29.160 --> 0:18:31.960 the Supreme Court? We met two arguments before the Supreme Court. 0:18:32.000 --> 0:18:34.400 I think both are strong. One argument is the state 0:18:34.520 --> 0:18:38.439 secrets doctrine does not authorize dismissal where the plainiffs can 0:18:38.560 --> 0:18:41.520 prove their case without secret information. There's a hundred fifty 0:18:41.600 --> 0:18:45.119 years of law on this preceding the Supreme Court's adoption 0:18:45.160 --> 0:18:47.280 of state secrets privilege in this case called Reynolds and 0:18:47.280 --> 0:18:50.400 I think fifty three. We exhaustively looked at every single case, 0:18:50.720 --> 0:18:54.040 every secondary authority sided in the opinion. There was also 0:18:54.040 --> 0:18:57.159 anomously from this historian. Professor Laura Donahue is an expert 0:18:57.200 --> 0:18:59.560 on the history in this area as well, and you 0:18:59.640 --> 0:19:02.760 can look for literally every case and there's not a 0:19:02.840 --> 0:19:05.720 single one that dismisses on their theory. Dismissals on their 0:19:05.760 --> 0:19:08.720 theory really don't start in earnest until after two one, 0:19:08.920 --> 0:19:12.119 when there's arguably perhaps one or two cases the nineteen 0:19:12.160 --> 0:19:16.160 eighties and nineties even all told, it's maybe five lower 0:19:16.200 --> 0:19:20.560 court decision and that's it. The overwhelming authority disabors their view. 0:19:20.840 --> 0:19:23.399 The other argument that we made was that because this 0:19:23.640 --> 0:19:27.800 is a case about the electronic surveillance of Americans on 0:19:27.960 --> 0:19:31.040 US soil, it's governed by a law called the Foreign 0:19:31.040 --> 0:19:34.960 Intelligence Surveillance fact and that law makes very detailed rules 0:19:35.359 --> 0:19:39.000 or how to handle information that the government says is 0:19:39.080 --> 0:19:43.120 too secret to disclose to the public or to litigant. 0:19:43.280 --> 0:19:46.639 And it does not permit dismissal without an adjudication of 0:19:46.680 --> 0:19:49.760 whether the surveillance was lawful. Instead, it requires the government 0:19:49.840 --> 0:19:52.000 to give the information to the district court, the court 0:19:52.080 --> 0:19:54.280 to look at it in secret, but the court decides 0:19:54.760 --> 0:19:57.119 did the government break the law? So those are the 0:19:57.160 --> 0:19:59.560 two arguments we made. Under either approach, you can't do 0:19:59.680 --> 0:20:02.040 what the district court did. A lot of the news 0:20:02.160 --> 0:20:05.720 reports say the justices struggled during the oral arguments. What 0:20:05.840 --> 0:20:08.920 was their main concern? I think on the first point, 0:20:09.000 --> 0:20:11.520 the state secrets point, At least for me, it seemed 0:20:11.560 --> 0:20:14.280 that much of the discussion was about whether the court 0:20:14.320 --> 0:20:16.440 should reach it at all or instead asked the lower 0:20:16.520 --> 0:20:18.680 court to decide it. There were some lower court cases 0:20:18.720 --> 0:20:21.639 after two thousand one that had adopted this broader approach 0:20:21.720 --> 0:20:24.320 to the district court adopted. But in two thousand eleven 0:20:24.359 --> 0:20:27.119 there was a Supreme Court case General Dynamics, which seemed 0:20:27.119 --> 0:20:30.000 to strongly call into question the validity of that approach. 0:20:30.160 --> 0:20:32.199 But you had these earlier circuit court cases that had 0:20:32.280 --> 0:20:34.560 adopted it. So there was seemed to be at least 0:20:34.600 --> 0:20:38.240 some concern about whether shouldn't the court below in this 0:20:38.320 --> 0:20:42.359 case of nine Circuits first examined whether, given our decision 0:20:42.400 --> 0:20:45.560 in general dynamics, this law should be reconsidered. And then 0:20:45.880 --> 0:20:47.880 the government had said, well, that's not really properly here, 0:20:48.000 --> 0:20:49.879 and that was some of the discussions about that. There 0:20:49.960 --> 0:20:52.320 was a little discussion about whether we're right or the 0:20:52.359 --> 0:20:55.439 government's right on the actual state secrets question itself. Justice 0:20:55.440 --> 0:20:59.240 score such had some I thought very intense questioning of 0:20:59.320 --> 0:21:01.960 the government on subject, but most of the discussions seemed 0:21:01.960 --> 0:21:04.240 to be about whether it should be reached now at 0:21:04.240 --> 0:21:06.640 all or that should be first passed on by the corporlo. 0:21:07.000 --> 0:21:09.760 On the second point on SPISA, there was more discussion 0:21:09.880 --> 0:21:12.720 of the merits of the argument itself, the textual arguments, 0:21:12.760 --> 0:21:15.520 the structural arguments. So the justices didn't want to reach 0:21:15.640 --> 0:21:18.960 the question on PISA, or maybe didn't want to reach 0:21:19.000 --> 0:21:21.480 any question, just send it back to the ninth Circuits. 0:21:21.640 --> 0:21:25.159 You know, I always uh, and there's not my first arguments, 0:21:25.200 --> 0:21:27.359 and so you know, you hear the things that happened, 0:21:27.400 --> 0:21:29.680 and then you read the opinion later and it doesn't 0:21:29.720 --> 0:21:31.280 come out the way, it's kind of flag to do. 0:21:31.800 --> 0:21:33.960 There are certainly some justices that were talking about that, 0:21:34.040 --> 0:21:36.719 and they discussed that with me very directly. But who 0:21:36.800 --> 0:21:39.080 knows that that's what they'll do. If they'll go back 0:21:39.119 --> 0:21:41.160 in conference and decide to do some completely different things, 0:21:41.160 --> 0:21:43.439 It's it's very hard differentict. But yeah, there were certainly 0:21:43.480 --> 0:21:46.359