Attorneys for Muslims who have been spied on by the government through paid informants like Irvine's Craig Monteilh asked a federal court to reject U.S. Attorney General Eric Holder's move to dismiss their lawsuit against the FBI on grounds the case exposes state secrets.
"It is shocking that the Obama Administration would invoke the state secrets privilege to dispose of this lawsuit," said Ameena Mirza Qazi, deputy executive director of the Council on American-Islamic Relations (CAIR) Greater Los Angeles Area office in Anaheim.
In a statement emailed to the Weekly by the American Civil Liberties Union's (ACLU) Southern California office in Los Angeles, Qazi continued, "State secrets should be an evidentiary rule to keep specific information or documents from being presented in court. It should not be used to prevent those wronged by the government from having their day in court."
On Monday, Holder made the a rare assertion of the state secrets privilege in a motion that argues significant harm to national security could arise if the government is forced to reveal the subjects of the FBI's mosque-surveillance program dubbed "Operation Flex." Monteilh, a fitness trainer and alleged conman, is the key informant in the case.
Fazaga v. FBI, which was filed in February, alleges that during 2006 and 2007 the FBI collected extensive records about the daily, routine religious practices of members of various Southern California mosques, including places of worship in Irvine and Garden Grove infiltrated by Monteilh.
The suit accuses the feds of compiling detailed records about which members attended daily prayers and hundreds of hours of video and audio recordings of discussion groups, prayers, religious lectures and social and cultural events at various mosques.
Ironically, much of the case against the FBI is built on Monteilh's claims the FBI told him to talk openly about jihad in an attempt to solicit terrorist sentiments from community members.
The FBI has said it does not initiate counterterrorism operations based solely on a group's religion. And Holder's motion claims details Monteilh provided for Operation Flex remain properly protected counterterrorism investigative information. "This includes . . . precisely what that investigation entailed and why it was undertaken, the identity of particular subjects, and the reasons they were investigated," the document states.
Holder argues that if individuals knew they were under surveillance, they could "anticipate the actions of law enforcement and intelligence officers, possibly leading to counter-surveillance that could place federal agents at higher risk."
The AG's Department of Justice released a statement Tuesday claiming it conducted a thorough review "to provide greater accountability for the use of privilege" by invoking it only in seeking dismissal of Monteilh's claims of illegal electronic surveillance.
"Officials specifically looked for a way to allow this case to proceed while carving out national security information, and concluded that some information about the allegations could be made available without compromising sensitive national security information," reads the statement.
The ACLU, CAIR and the firm of Hadsell, Stormer, Keeny Richardson and Renick filed its motion late Thursday requesting that the court rule whether the state secrets doctrine can properly be invoked in the case before a ruling is made on the DOJ request.
Today's ACLU statement notes, "Many of those targeted were American citizens. In more than five years since the investigation began, the surveillance led to criminal charges against only one individual, which prosecutors ultimately dismissed."
That's a reference to the case that exposed Monteilh's spying. Afghan immigrant Ahmadullah Sais Niazi, a Tustin resident who attended mosques infiltrated by Monteilh, was arrested in 2009 for allegedly lying on his visa application about one of his in-laws being involved with Al Qaeda. Court documents revealed an FBI informant had gathered evidence used to indict Niazi. Monteilh then emerged to identify himself as the FBI informant who warned the bureau about Niazi.
Monteilh said at the time he went public because the FBI owed him money for spying and had burned him by failing to intervene in a criminal case that put him behind bars. The Weekly's reporting later exposed Monteilh's criminal record and separate allegations claiming he was a conman.
Besides seeking a court-ordered end to the FBI using informants like Monteilh to spy on Americans and those freely practicing their religion as guaranteed in the U.S. Constitution, the suit wants the bureau to either turn over or destroy all information that was collected "through the discriminatory investigation."
Also sought are unspecified damages for emotional distress for the plaintiffs named in the suit: Sheikh Yassir Fazaga, Ali Malik and Yassir Abdel Rahim.
Fazaga, who was born in Eritrea in Northeast Africa and moved to the United States at the age of 15, is the religious leader of Orange County Islamic Foundation in Mission Viejo and the director of the Mental Health Department at Access California, an Anaheim social services agency. He was among the religious leaders around the country who signed a plea to Orange County District Attorney Tony Rackauckas urging criminal charges be dropped against the "Irvine 11," Muslim students who disrupted a February 2010 speech at UC Irvine by Michael Oren, Israel's ambassador to the United States. Charges against one student have since been dropped pending his completion of community service.
Malik, a Palestinian American who now works for a San Francisco nonprofit, was asked by the Irvine mosque's imam to help eager convert Monteilh, who went by "Farouk al-Aziz" around Muslims and "Oracle" around FBI agents, learn about the religion. Malik, who has said al-Aziz wanted to talk about jihad instead of his new faith, tipped mosque leaders off about being suspicious of al-Aziz/Monteilh, especially when he started showing up at Malik's gym.
Based on the suspicions of Malik, Niazi and others, the mosque informed CAIR about this crazy guy talking jihad, and the Islamic civil rights organization in turn went to the FBI, which had previously come to a forum in Irvine expressing interest in rebuilding ties with CAIR that had chilled after a DOJ attorney in New York named the group an unindicted co-conspirator in a terror probe.
Niazi was arrested shortly after that.
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"Allowing the government to hide behind this spurious claim of state secrets would mean Americans that suffer the worst abuses from law enforcement have no recourse in the courts," says Dan Stormer, a Hadsell, Stormer, Keeny Richardson and Renick attorney working on Fazaga v. FBI, in the ACLU release.
"The government's theory would allow the FBI to violate the constitution with impunity using the talisman of state secrets," continues Stormer, one of five defense attorneys also representing different members of the Irvine 11.
"This case alleges that the most basic constitutional protections of law-abiding Americans were violated by a domestic law enforcement agency, conducting an investigation on U.S. soil," added ACLU/SC staff attorney Peter Bibring. "The government's suggestion that the FBI's actions here are state secrets would mean a sweeping expansion of the state secrets doctrine."