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On Monday, the US Supreme Court justices 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 and surveillance were allegedly targeted against Muslims. So, they reported the FBI informant for alleged attempts to incite violence. The subjects of the surveillance eventually sued the FBI and some of the individual agents who took part in the operation. They alleged that their community was only targeted because of their religion.

But the FBI claimed that state secrets privilege in an attempt to shut down the case. The agency argued 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 courts heard in just a few weeks. It indicates 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. The 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.

Sotomayor repeatedly complained that Kneelder wasn’t answering her questions. But perhaps the most contentious exchange happened later between Ahilan Arulanantham (a lawyer for the plaintiffs) and Justice Amy Coney Barrett. Barrett asked, “What happens to the individual defendants? Let’s say that the evidence that they can use to defend themselves against the claim that they religiously discriminated against in this body of evidence that’s protected by the state secrets doctrine. 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”? Barrett also 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.