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
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
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
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.
"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.”