Speaker 1: From bloom Bird Radio. Should a death row inmate be
Speaker 1: able to have his pastor pray out loud and lay
Speaker 1: hands on him during his execution. It's a question the
Speaker 1: Supreme Court Jelstice is struggled with this week, and it
Speaker 1: led some jealstic is typically solicitous of religious rights to
Speaker 1: express concerns about the possibilities of gamesmanship and a flurry
Speaker 1: of last minute filings by death row inmates. Here are jealostice,
Speaker 1: says Clarence Thomas and Samuel Alito. Can one's repeated filing
Speaker 1: of complaints, particularly at the last minute, not only be
Speaker 1: seen as evidence of gaming of the system, but also
Speaker 1: of um the sincerity of religious beliefs. What's going to
Speaker 1: happen when the next prisoner says that I have a
Speaker 1: religious belief that he should touch my knee, he should
Speaker 1: hold my hand, he should put his hand over my heart.
Speaker 1: But other justices, such as Sonya Soto Mayor, seemed to
Speaker 1: see the inmates request as reasonable his desire to have
Speaker 1: the pastor in the execution chamber when he's dying, because
Speaker 1: the whole purpose of the religious belief is that you
Speaker 1: should have a pastor to help guide you to the
Speaker 1: other place. Joining me is Richard Garnett, a professor at
Speaker 1: Notre Dame Law School and director of the Program on Church,
Speaker 1: State and Society. Rick, this isn't about the First Amendment.
Speaker 1: Tell us about the law issue here. So this law,
Speaker 1: this Religious Land Use and Institutionalized Person's Act, was enacted
Speaker 1: by Congress a couple of decades ago. It had the
Speaker 1: purpose of providing additional protections to prisoners in the United States,
Speaker 1: protections that are more expansive than the ones that the
Speaker 1: Constitution provides. In this particular case, this is kind of
Speaker 1: the culmination of a number of disputes that have come
Speaker 1: to the Supreme Court in recent years where states have
Speaker 1: struggled with their execution procedures and specifically have kind of
Speaker 1: bounced around about how they're going to handle the sense
Speaker 1: of spiritual advisors and clergy in the execution chamber. Why
Speaker 1: have there been so many cases with questions about ministers
Speaker 1: being in the execution chamber. There's certainly a long tradition
Speaker 1: of ministers and clergy being present during executions now in
Speaker 1: the United States, in recent decades, as the execution process
Speaker 1: has become more sort of closed off, and as obviously
Speaker 1: we moved away from public executions towards private ones, and
Speaker 1: they're very strictly choreographed and controlled. It's not surprising that
Speaker 1: this issue comes up, particularly once you have this federal
Speaker 1: law in place that does explicitly protect the religious freedom
Speaker 1: rights of prisoners. Here, what we're dealing with, if you
Speaker 1: want to look sort of just in the last few years.
Speaker 1: What makes this case a little tricky to follow is
Speaker 1: the fact that the states have kind of changed practices. So, um,
Speaker 1: you know you have uh, one state sort of um
Speaker 1: denying access to a h a clergy person, uh to
Speaker 1: condemns selection altogether. Then the court says you can't do that.
Speaker 1: Then um, uh that as you can't do it in
Speaker 1: a denominationally discriminatory way. If you're gonna let Christian people
Speaker 1: have their ministers, then you can't deny it to people
Speaker 1: who are non Christian. So then the state says, well,
Speaker 1: if you're telling us we have to let in just
Speaker 1: any requested clergy member, we're going to change our policy
Speaker 1: and have no clergy coming in at all. Um. And
Speaker 1: then states change that practice and say, well, no, we'll
Speaker 1: let clergy be present, but they can't touch or they
Speaker 1: can't audibly pray um, So, there is kind of a
Speaker 1: tangled history up and down, and I think the hope
Speaker 1: for some of us who's been following this case is
Speaker 1: that the Court will clarify things a bit. So tell
Speaker 1: us about the concerns expressed by the justices during your arguments. Well,
Speaker 1: one thing that was clearly on the justices minds, and
Speaker 1: including on the minds of justices who have a record
Speaker 1: of being solicitous of religious liberty, was you know, where
Speaker 1: is this going to lead? How do we draw lines
Speaker 1: between the kinds of clergy access that are permissible and
Speaker 1: the ones that might be disruptive or unsettling or and
Speaker 1: dangerous to the procedure. Obviously this is a very sensitive context,
Speaker 1: and the Justice has recognized this. The government has a
Speaker 1: strong interest in wanting to minimize the risk of disruptions
Speaker 1: during an execution, especially because, as you know, there's been
Speaker 1: some high profile executions where the process has been botched
Speaker 1: and the inmates have suffered, and so obviously states want
Speaker 1: to minimize to the extent they can, the risk of
Speaker 1: that happening. But as some of the justices, like Justice
Speaker 1: so Domior in Justice Kagan mentioned in oral argument, Congress
Speaker 1: has made it clear that they want states to be
Speaker 1: solicitous of religious freedom, even when it's inconvenient, and even
Speaker 1: when it might be a bit challenging. States are expected
Speaker 1: to do what they can to accommodate religious freedom. So
Speaker 1: if you listen to the oral arguments, a lot of
Speaker 1: the for lack of a better word, more conservative justices
Speaker 1: were pressing the lawyer for Mr Ramirez, saying, Okay, where
Speaker 1: would the line be. It's one thing you wanted to
Speaker 1: have a pastor touching the inmate on his foot, but
Speaker 1: what if you wanted to touch the inmate on his
Speaker 1: head or on his heart. And you say you want
Speaker 1: to have audible prayer. That's great, but what if the
Speaker 1: minister starts yelling really loudly and interfering with the communication
Speaker 1: and so on. So they were struggling with the line
Speaker 1: drawing problem. The other thing that you heard the justices
Speaker 1: concerned about was that condemned inmates would use last minute
Speaker 1: religious liberty claims as a way to kind of secure
Speaker 1: delays in their execution. That is, that there would be
Speaker 1: bad faith claims or it's just as Thomas put it,
Speaker 1: there the efforts to gain the system where you know,
Speaker 1: at the last minute and inmate would say, wait a minute,
Speaker 1: I have decided I need to have my pastor present
Speaker 1: and thereby sort of require the state to have to
Speaker 1: change its procedures or put things off. And it's a
Speaker 1: long standing concern and death pedalty litigation that inmates might
Speaker 1: file last minute complaints and possibly delay the process. But
Speaker 1: of course the court has been dealing with those for
Speaker 1: a long time. After the oral arguments, did you get
Speaker 1: a feel for how they might rule for me? It
Speaker 1: was difficult to come away from the oral argument with
Speaker 1: any clear view of what would happen. But I guess
Speaker 1: I did think that, notwithstanding the line drawing problems that
Speaker 1: various justices were concerned about, that the arguments did sort
Speaker 1: of circle back to the key point that Congress has
Speaker 1: told courts that they are supposed to insist that state
Speaker 1: government accommodate prisoners religious freedom to the extent they can.
Speaker 1: And so if we have a record into Ramirez case
Speaker 1: that shows that it's possible to accommodate requests like these
Speaker 1: in ways that don't disrupt prison practices, I suspect that's
Speaker 1: what the justices will say. The Act requires justice. Amy
Speaker 1: Coney Barrett expressed concerns that if prisons didn't allow this,
Speaker 1: then perhaps the next step in the future would be
Speaker 1: prisons barring worship services. She was and like a lot
Speaker 1: of the justices. Again, this is something we see not
Speaker 1: just in the Supreme Court but in law generally, is
Speaker 1: that judges, when they are formulating rules and when they're
Speaker 1: applying rules, they're often thinking about the next case. Where
Speaker 1: does this go. So a court might think, if we
Speaker 1: allow Texas to say no ministers may touch an inmate
Speaker 1: in the execution chamber because that's too sensitive, then maybe
Speaker 1: a couple of years and other state decides, you know what,
Speaker 1: allowing ministers to be physically present for church services is
Speaker 1: too dangerous. We're just going to have to do it
Speaker 1: all by zoom. Now that's a concern about things going
Speaker 1: in one direction, and then of course the concern going
Speaker 1: in the other direction is like, okay, well, if we
Speaker 1: say that this act guarantees a religious inmates right to
Speaker 1: have physical touch and oral prayer in the execution chamber,
Speaker 1: then the next inmate is going to say that there
Speaker 1: has to be physical touch. Like I said on the head,
Speaker 1: there's always this concern about how to find lines, how
Speaker 1: to anticipate the next case that's not unusual. Did it
Speaker 1: strike you as unusual that some of the justices who
Speaker 1: are normally solicitous of religious rights seem to have real
Speaker 1: concerns in the death penalty context. Yeah, I wouldn't put
Speaker 1: it quite so starkly. It was just clear that those
Speaker 1: justices were anxious about some of the possible implications and
Speaker 1: the line drawing problems. One of the things that's worth
Speaker 1: emphasizing is that in the Supreme Court, when it comes
Speaker 1: to religious freedom under this particular federal statute, the justices
Speaker 1: have not been divided on ideological lines. The last one,
Speaker 1: called Hope versus Hobbs, involved a prisoner in Arkansas who
Speaker 1: wanted an exemption from a no beard's rule because of
Speaker 1: his religious faith, and he won nine to zero, and
Speaker 1: as an earlier case called Cutter, again not divided on
Speaker 1: on ideological grounds. So even though the justices obviously disagree
Speaker 1: about many criminal justice issues and about capital punishment, there's
Speaker 1: been something like a consensus that federal law requires states
Speaker 1: to accommodate religious objectors and religious believer special needs even
Speaker 1: in prison. I think this case, just because the death
Speaker 1: penalty context is so sensitive, and because the justices have
Speaker 1: a lot of experience with these last minute appeals that
Speaker 1: some of them were nervous about the implications of this
Speaker 1: particular claim. But I'm hoping in any event, that those
Speaker 1: concerns were answered and that you know, they'll continue with
Speaker 1: the practice of against sort of a consensus view that
Speaker 1: prisoners religious freedom rights should be protected to the extent possible.
Speaker 1: So I have to say I'm surprised in this instance
Speaker 1: the Supreme Court halted his execution and fast tracked the
Speaker 1: arguments as long as the minister could be in the room.
Speaker 1: Is it so critical that the minister touch the innate? Well,
Speaker 1: all so interesting? I mean, this isn't this is It's
Speaker 1: an important point about religious freedom cases generally, is that
Speaker 1: UM courts have a have a challenge and that the
Speaker 1: religious freedom protections that exist in our laws exist for everyone,
Speaker 1: including for people whose religious practices are less familiar to us. So, um,
Speaker 1: you know, Ramirez and his pastor assert and I don't
Speaker 1: think we have any reason to think that their inn
Speaker 1: sincere that it is part of their religious belief, that
Speaker 1: the that the laying on of hands is an important
Speaker 1: part of UM of prayer for another person. That's not
Speaker 1: to say that prayer can't happen without it. But it's
Speaker 1: an important Uh, it's an important component of how they
Speaker 1: think about praying for other people. So you you lay
Speaker 1: you lay hands on their bodies. And that's the practice
Speaker 1: I was familiar with from when I was a kid,
Speaker 1: going to Assembly of God's schools and so on. Um,
Speaker 1: So I don't think that's so unusual. But you know,
Speaker 1: you could imagine um, somebody who said, well, you know
Speaker 1: what has to happen for me and my execution chamber
Speaker 1: is that um, um, my minister, my spiritual advisor has
Speaker 1: to be allowed to um chant and light candles and
Speaker 1: burn incense and perhaps play some music. And that's that
Speaker 1: might be more disruptive. So, and the problem, it's not
Speaker 1: a problem. It's just the fact that for courts that
Speaker 1: are trying to administer these religious freedom laws, they can't
Speaker 1: really pick and choose among the religious beliefs that they
Speaker 1: happen to share. Instead, they have to ask, is the
Speaker 1: is the claimants sincere? If they're not sincere, they don't
Speaker 1: get the benefit of these laws. And is the claimants
Speaker 1: belief actually being burdened. If there's no real burden, then
Speaker 1: they don't get the benefit of these laws, and if
Speaker 1: they are being burdened, and if their belief is sincere,
Speaker 1: then the burden is on the government to justify why
Speaker 1: it's doing what it's doing. And um, you know, the
Speaker 1: government has to have have to point to a what
Speaker 1: the law calls a compelling interest to justify any kind
Speaker 1: of burdens on sincere religious practice, and they have to
Speaker 1: convince the court that there aren't other avenues that are
Speaker 1: available that would make it possible for them to to
Speaker 1: accomplish their interests. So that was what a lot of
Speaker 1: the oral argument was about. You know, some of the
Speaker 1: justices were pressing the lawyer for the state, Okay, what
Speaker 1: exactly is it that Texas says is the important interest
Speaker 1: that requires them to not permit touching by a minister
Speaker 1: or oral prayer? And why is it that Texas thinks
Speaker 1: there are no less burdensome procedures that could adequately ensure
Speaker 1: that the execution process goes off smoothly. Um, And and
Speaker 1: again there's no there's there's no way around it. This
Speaker 1: is the inquiry that Congress has told courts to do.
Speaker 1: That there in the sense they are they're told they're
Speaker 1: supposed to second guess the government They're not supposed to
Speaker 1: just defer to the government when it says, look, we
Speaker 1: want to do this because it's convenient, or we don't
Speaker 1: want to do that because it's in convenient. That's not
Speaker 1: good enough if there's a bird unsincere religious exercise. At
Speaker 1: the same time, it's clear that um prison administrators and
Speaker 1: so on are allowed to enact regulations to keep things safe,
Speaker 1: and so the Court is aware of that. But nonetheless
Speaker 1: it has to carry out its statutory duty and and
Speaker 1: vindicate to the extent reasonably possible the religious freedom interests,
Speaker 1: even of somebody who's been condemned to be executed. Thanks Rick.
Speaker 1: That's Professor Richard Garnett of Notre Dame Law School. For
Speaker 1: the second time in a little over a month, the
Speaker 1: Supreme Court considered a case involving state secrets. This time,
Speaker 1: the FBI was being sued for spying on the Muslim
Speaker 1: community at a mosque in Irvine, California, starting in two
Speaker 1: thousand six. The government invoked the state secrets privilege, claiming
Speaker 1: that in order to defend itself, it would have to
Speaker 1: reveal state secrets. Justice Neil gors It suggested that the
Speaker 1: government couldn't have it both ways, and so the government's
Speaker 1: really a choice. Doesn't want to disclose the evidence and
Speaker 1: defend itself or does it want to let a judgment
Speaker 1: at torqu Churchment go ahead against it and and keep
Speaker 1: keep national security safe. Joining me is the attorney for
Speaker 1: the plaintiffs who argued at the Supreme Court. A. Helen
Speaker 1: are A Lana Thumb, co director of the Center for
Speaker 1: Immigration Law and Policy at u c l A Law School.
Speaker 1: Start by telling us about your clients. Clients are three
Speaker 1: men Muslim Americans who lived in southern California, Orange County
Speaker 1: in two thousand and six seven. Shakespeazaga with them the
Speaker 1: mom at the Orange County Foundation in Mission Viejo, which
Speaker 1: is not to San Diego. He's now in mem Tennessee.
Speaker 1: The other two, Rahim and Ali were congregants at the
Speaker 1: Center of Irvine, just a large mosque and Irvine, California.
Speaker 1: And they're all interesting, wonderful people. Shack Tazaga is also
Speaker 1: a license a therapist and originally in a recent immigrants
Speaker 1: but here now for more than thirty years. Pabi Molick
Speaker 1: is born and raised Orange County who's very sort of
Speaker 1: southern California kind of guys. A surfer, young Republican back then. Now,
Speaker 1: I guess the middle age Republicans. You also have a
Speaker 1: roteam of Egyptian immigrants, and I t person he's designed. Actually,
Speaker 1: I don't understand. It's something involving video games. He worked
Speaker 1: for Nintendo. Now tell us what happened at the mosque.
Speaker 1: The FBI sent an informant into actually something like eight
Speaker 1: or ten mosques in the southern California area for the purpose,
Speaker 1: according to that informant who has since come out, for
Speaker 1: the purpose of gathering information on Muslims, and his instructions
Speaker 1: were to gather information simply on Muslims, and then to focus,
Speaker 1: if at all, on religious leaders, on people who appeared
Speaker 1: more devout, like going to early morning prayer or changing
Speaker 1: their dress, people who you know, looked like they were
Speaker 1: it's not religious leaders, like social leaders, people who had
Speaker 1: influenced with youth, things like that. And he focused on
Speaker 1: the three of them, and he explains this in his
Speaker 1: declarations in the case because of their kind of connection
Speaker 1: to these different sort of profiles. So Shakepasag obviously being
Speaker 1: the mom of the mosque, Alimlis, a young man at
Speaker 1: this point, was just starting to embrace his faith, more
Speaker 1: so he started to dress a little bit more conservatively.
Speaker 1: He had studied Arabic abroad and studied Islam. Abdi Rahim
Speaker 1: actually I think sort of hadn't done anything, but the
Speaker 1: mom had asked him, said, Hey, here's a new person
Speaker 1: who's a convert. Do you want to kind of show
Speaker 1: him the ropes a little bit and teach him about Islam.
Speaker 1: And he was just living with a in a house
Speaker 1: with some other young Muslim guys who just played a
Speaker 1: lot of video games basically, and the informants started targeting
Speaker 1: all three of them for these reasons, you know. So
Speaker 1: he started spending a lot of time in abdio Rahim's apartment.
Speaker 1: He befriended Ali Malik and tried to continuate himself into
Speaker 1: his life, try and find out about his family, you know,
Speaker 1: if he had marital problems and things like that. There's
Speaker 1: what informants in the FBI system do. They try and
Speaker 1: find these things so they can use them to leverage
Speaker 1: people into giving information about their friends and neighbors. So
Speaker 1: he had interactions with them. There was no violence of
Speaker 1: any kind or anyone planning any terrorism or anything like that.
Speaker 1: And then over time, because of that, the informant tried
Speaker 1: to instigate that. So he tried to ask people first
Speaker 1: about jihad and about violent jihad, their views about the
Speaker 1: wars in Iraq and Afghanistan, and uniformly he was told
Speaker 1: that's not proper Islam, we don't believe in that, and
Speaker 1: kind of tried to be sent back on the path
Speaker 1: of studying the religion and not not focusing on those things.
Speaker 1: But he persisted and eventually he scared people, and so
Speaker 1: then actually both Ali Malik and Yaser Abdora he he
Speaker 1: specifically became scared of him, and they reported him both
Speaker 1: to the prominent community leader who's the head of the
Speaker 1: Cutlin American Islamic relations in l A who's on my lush,
Speaker 1: and also the FBI and who saw also called the
Speaker 1: FBI about this informant and then his kind of cover
Speaker 1: was loan. They also because he was continued to talk
Speaker 1: about these things, and they, I think we're very I
Speaker 1: think a combination of perhaps scared of him and think
Speaker 1: thoughts maybe he was an informant. Islamic Center Irvine actually
Speaker 1: got a protective order barring him from coming into the mosque,
Speaker 1: and then he became basically useless to the FBI and
Speaker 1: then something happened that we don't totally understand. He had
Speaker 1: some kind of falling out with them, and then he
Speaker 1: went public and his status was revealed in a criminal
Speaker 1: prosecution for immigration fraud. Was the only prosecution that came
Speaker 1: out of any of this, and that prosecution was itself
Speaker 1: dismissed on the government's motions. There's not a single conviction
Speaker 1: that came out of any of this, and then he
Speaker 1: went public with all the information. So you sued based
Speaker 1: on religious discrimination. What happened to your lawsuit? We sued
Speaker 1: under both religious emination and privacy violations. The government then
Speaker 1: came in and said, we promised we're not a spying
Speaker 1: on people solely because of their religion, but anything else
Speaker 1: that we would say in order to explain why actually
Speaker 1: what we're doing is lawful would require the disclosure of
Speaker 1: secret information. And because we can't defend ourselves with the
Speaker 1: secret information, your religion claims have to be dismissed under
Speaker 1: the state secrets doctrine. So the district court dismissed the case.
Speaker 1: The Ninth Circuit revived it. What was your argument before
Speaker 1: the Supreme Court? We met two arguments before the Supreme Court.
Speaker 1: I think both are strong. One argument is the state
Speaker 1: secrets doctrine does not authorize dismissal where the plainiffs can
Speaker 1: prove their case without secret information. There's a hundred fifty
Speaker 1: years of law on this preceding the Supreme Court's adoption
Speaker 1: of state secrets privilege in this case called Reynolds and
Speaker 1: I think fifty three. We exhaustively looked at every single case,
Speaker 1: every secondary authority sided in the opinion. There was also
Speaker 1: anomously from this historian. Professor Laura Donahue is an expert
Speaker 1: on the history in this area as well, and you
Speaker 1: can look for literally every case and there's not a
Speaker 1: single one that dismisses on their theory. Dismissals on their
Speaker 1: theory really don't start in earnest until after two one,
Speaker 1: when there's arguably perhaps one or two cases the nineteen
Speaker 1: eighties and nineties even all told, it's maybe five lower
Speaker 1: court decision and that's it. The overwhelming authority disabors their view.
Speaker 1: The other argument that we made was that because this
Speaker 1: is a case about the electronic surveillance of Americans on
Speaker 1: US soil, it's governed by a law called the Foreign
Speaker 1: Intelligence Surveillance fact and that law makes very detailed rules
Speaker 1: or how to handle information that the government says is
Speaker 1: too secret to disclose to the public or to litigant.
Speaker 1: And it does not permit dismissal without an adjudication of
Speaker 1: whether the surveillance was lawful. Instead, it requires the government
Speaker 1: to give the information to the district court, the court
Speaker 1: to look at it in secret, but the court decides
Speaker 1: did the government break the law? So those are the
Speaker 1: two arguments we made. Under either approach, you can't do
Speaker 1: what the district court did. A lot of the news
Speaker 1: reports say the justices struggled during the oral arguments. What
Speaker 1: was their main concern? I think on the first point,
Speaker 1: the state secrets point, At least for me, it seemed
Speaker 1: that much of the discussion was about whether the court
Speaker 1: should reach it at all or instead asked the lower
Speaker 1: court to decide it. There were some lower court cases
Speaker 1: after two thousand one that had adopted this broader approach
Speaker 1: to the district court adopted. But in two thousand eleven
Speaker 1: there was a Supreme Court case General Dynamics, which seemed
Speaker 1: to strongly call into question the validity of that approach.
Speaker 1: But you had these earlier circuit court cases that had
Speaker 1: adopted it. So there was seemed to be at least
Speaker 1: some concern about whether shouldn't the court below in this
Speaker 1: case of nine Circuits first examined whether, given our decision
Speaker 1: in general dynamics, this law should be reconsidered. And then
Speaker 1: the government had said, well, that's not really properly here,
Speaker 1: and that was some of the discussions about that. There
Speaker 1: was a little discussion about whether we're right or the
Speaker 1: government's right on the actual state secrets question itself. Justice
Speaker 1: score such had some I thought very intense questioning of
Speaker 1: the government on subject, but most of the discussions seemed
Speaker 1: to be about whether it should be reached now at
Speaker 1: all or that should be first passed on by the corporlo.
Speaker 1: On the second point on SPISA, there was more discussion
Speaker 1: of the merits of the argument itself, the textual arguments,
Speaker 1: the structural arguments. So the justices didn't want to reach
Speaker 1: the question on PISA, or maybe didn't want to reach
Speaker 1: any question, just send it back to the ninth Circuits.
Speaker 1: You know, I always uh, and there's not my first arguments,
Speaker 1: and so you know, you hear the things that happened,
Speaker 1: and then you read the opinion later and it doesn't
Speaker 1: come out the way, it's kind of flag to do.
Speaker 1: There are certainly some justices that were talking about that,
Speaker 1: and they discussed that with me very directly. But who
Speaker 1: knows that that's what they'll do. If they'll go back
Speaker 1: in conference and decide to do some completely different things,
Speaker 1: It's it's very hard differentict. But yeah, there were certainly
Speaker 1: several justices that talked about the idea of maybe just
Speaker 1: sending the case back, either without deciding anything about PISA
Speaker 1: or the State Secrets privilege, or perhaps deciding something about
Speaker 1: BIST but not because privilege. Justice Briar said to you, so,
Speaker 1: do you really care whether the government's right or on
Speaker 1: the displacement of the States Secrets doctrine by eighteen o
Speaker 1: six or whatever. Well, he was saying, you know, if
Speaker 1: you don't believe in dismissal, then do you care? And
Speaker 1: I think that question is exactly it gets to a
Speaker 1: basically point about our arguments. Definitely happy in your massa
Speaker 1: because I felt like it meant to the understand we
Speaker 1: were saying, if the dismissal is not available under the
Speaker 1: state speakers privilege, and it doesn't matter whether five applies
Speaker 1: or not, because either way, the District Court was wrong,
Speaker 1: and we should be allowed to proceed, whether under five
Speaker 1: so or under the general rules of civil litigation. I
Speaker 1: took that questions. I mean, of course, the answer seat
Speaker 1: in question is is their dismissal available in the state
Speaker 1: secrets privilege at all? Because if the answer is no,
Speaker 1: and who cares whether or not? What fives a definite context?
Speaker 1: Because the decision below, the district court decision was wrong,
Speaker 1: and so I was hoping optimistically that what follows from
Speaker 1: that question is send it back. Tell the court they
Speaker 1: did it in the wrong order. They should first decide
Speaker 1: the dismissal question, and then we can either leave the
Speaker 1: fives the decision intact, or we can just vacate it
Speaker 1: as having been unnecessary to the decision. Tell us about
Speaker 1: the Seventh Amendment problem that justice is a leado and
Speaker 1: Barrett seemed interested in. We had sued both the government
Speaker 1: in its official capacity, and we had also sued the
Speaker 1: individual defendants for damages, and individual defendants in civil litigation
Speaker 1: generally have a jury trial rights and also do process right.
Speaker 1: And so given that, what by contemplates is that the court,
Speaker 1: besides the question about whether surveillance is lawful in secrets,
Speaker 1: you know, I got a lot of questions in both
Speaker 1: Justice Alito and Justice Barrett about whether it's constitutional to
Speaker 1: adjudicate the rights of the individual defendants in a proceeding
Speaker 1: that is secret. And what I was saying was, we
Speaker 1: may never get to that question because as an all civilitiation,
Speaker 1: the parties may win or lose on some re judgment,
Speaker 1: and some re judgment is consistent with the Seventh Amendment
Speaker 1: and the do process paused. And so if we went
Speaker 1: on some re judgment, or if they went on some
Speaker 1: re judgments, then we're never going to even get there.
Speaker 1: So why are we talking about this now? The exchange
Speaker 1: you had with Justice Barrett seemed very contentious. Did you
Speaker 1: feel like you were being really put on the spot there?
Speaker 1: Justice Barrett really quizzed you on that point. Here's part
Speaker 1: of that exchange. But so, so can that happen if
Speaker 1: there's a constitutional element to the privilege? So, um, I
Speaker 1: mean if we're talking about article to um, oh no,
Speaker 1: but you're asking about it, Well, I'm asking, like chips
Speaker 1: fall where they may, and you're you're saying that that's
Speaker 1: fine even if violates the do process rights of the
Speaker 1: individual defendants. Well, I think so Again, there's another option.
Speaker 1: I want to make sure I get to talk about
Speaker 1: the other option. Did you feel like that got a
Speaker 1: little contentious. I wouldn't call it contentious. I think she
Speaker 1: had hard questions for me, and she'd obviously thought a
Speaker 1: lot about the Seventh Amendment problem and do process problem.
Speaker 1: And no, I didn't. I didn't feel like I was
Speaker 1: being sort of attacked anyway. I mean, she gave me,
Speaker 1: I said two things I want to say about this,
Speaker 1: and I said the first one, and then she asked
Speaker 1: me a question about the first one. Again. I said, okay,
Speaker 1: I still want to say my second thing. And I
Speaker 1: gave my answer, and she and she and she nodded
Speaker 1: at me. She nodded at me in the courtroom video.
Speaker 1: She nodded me. It's like, yeah, you'll get your chance.
Speaker 1: I said the thing again. Then she asked me another question.
Speaker 1: I didn't ask for the second one again, she still,
Speaker 1: you know, answered that and then and then I think, okay,
Speaker 1: let me talk about the other thing. And she completely
Speaker 1: let me do that and listened and you know, let
Speaker 1: me do it, at least in the room. It definitely
Speaker 1: didn't feel like hostile or attacking or anything like that.
Speaker 1: I mean, It definitely felt like she thought this is
Speaker 1: a problem, and so she was giving me every chance
Speaker 1: in the world to try and firsuadeer that it was not.
Speaker 1: I'm not sure that I've succeeded. The argument was scheduled
Speaker 1: for eighty minutes. It went two hours, So the justices
Speaker 1: are firing questions at you. Is it mentally exhausting? I
Speaker 1: was very pleased by the fact that they I mean,
Speaker 1: obviously you don't know if they're all engaged the whole time,
Speaker 1: because they're going kind of one any time, but clearly
Speaker 1: they seemed certainly all engaged through the whole time. And
Speaker 1: I have listened to arguments where the seals as though
Speaker 1: the justices are kind of done with it, where they
Speaker 1: all passed on the questions. Not all, but many of
Speaker 1: them passed on the questions at the end. And the
Speaker 1: fact that so many of them had questions for me
Speaker 1: right through the end, it seemed that they were really
Speaker 1: grappling with it. So I was very happy about that.
Speaker 1: But to answer your question, yet, it was exhausting. It
Speaker 1: was definitely shausting. When I walked out, I thought, and
Speaker 1: I've done many circuit court arguments and two other Supreme
Speaker 1: Court arguments, and I thought, I don't think I've ever
Speaker 1: been in an argument that was that intense, which I like,
Speaker 1: for one full hour. I was just you know, in
Speaker 1: that kind of mental space. So you're trying to just
Speaker 1: be totally aware and think and be as responsive as
Speaker 1: you can and think about all the applications of your argument,
Speaker 1: you're what you're saying, and it was, Yeah, it was
Speaker 1: really tiring, really really tiring. Well, thanks for spending this
Speaker 1: time with us. That's a healing Arolana Thumb, co director
Speaker 1: of the Center for Immigration Law and Policy at u
Speaker 1: c l A Law School. And that's it for the
Speaker 1: edition of the Bloomberg Law Show. Remember you can always
Speaker 1: at the latest legal news on our Bloomberg Law Podcast.
Speaker 1: You can find them on Apple Podcasts, Spotify, and at
Speaker 1: www dot Bloomberg dot com, slash podcast, slash Law. I'm
Speaker 1: June Rosso and you're listening to Bloomberg