Supreme Court returns state-secrets privilege case to lower court 

A privilege that lets the government withhold certain information in court because it’s a “state secret” will not be reviewed by the Supreme Court, the justices ruled Monday. 

It vacates a decision that would make it harder for the government to invoke the privilege, returning a challenge brought by three Muslim men who claim they were surveilled because of their religion to a lower court for reconsideration — after a twist.  

Though the government first asked the Supreme Court to take the case up, it suggested in a later court filing that the justices could send the case back to the lower court for reconsideration after a “significant intervening event” undermined it altogether.  

The government said that the source of the challengers’ “core allegations” of religious surveillance, Craig Monteilh, recanted his claims.  

The challengers pointed out that the recantation was unsworn and said it does not merit tossing back the case. They argued that the lower court’s decision would only bar dismissal over speculation.  

“The decision below also creates no risk that secret information will be disclosed without an opportunity for the government to object and appeal,” their lawyers wrote. 

The government had asked the justices to weigh a federal appeals court’s ruling that dismissals under the so-called “state-secrets privilege” are only warranted if the government can first demonstrate that the privileged evidence “clearly shows” a valid defense that would require judges to rule for the government.  

The privilege allows government lawyers to withhold information that would threaten national security and could implicate major cases involving the Trump administration. 

Solicitor General D. John Sauer called it a “deeply flawed decision.” 

“The decision poses a serious risk of depriving the government of a vital tool to prevent the disclosure of state secrets by demanding that the government affirmatively use privileged information to adjudicate the merits of claims to which the information pertains,” he wrote.  

The Trump administration has invoked the privilege in its bids to deport Venezuelan migrants under the Alien Enemies Act and in the case of the wrongfully deported man Kilmar Abrego Garcia. 

In 2022, the high court unanimously held that the Foreign Intelligence Surveillance Act (FISA) does not displace the state-secrets privilege. But on remand, the U.S. Court of Appeals for the 9th Circuit reversed once more the district court’s dismissal of the respondents’ surveillance claims.