See the update at the end of this post on the ruling issued in Fazaga v. FBI.
ORIGINAL POST, AUG. 13, 2:55 P.M.: It's no secret that the government has used informants to spy on Muslim-American communities. Orange County Muslims know it well.
You may have read about them here at the Weekly. Former-convict-turned-government-paid informant Craig Monteilh infiltrated several Orange County mosques to spy on its members under the guise of a Muslim convert in a called Operation Flex. His efforts, which started in spring of 2007, culminated in one criminal case involving immigration status, which prosecutors later dismissed. Shortly after, Monteilh went public because he claimed the FBI owed him money for spying and it failed to intervene in a criminal case that landed him in jail.
That story is the basis for many of the accusations made in Fazaga v. FBI, a
class-action lawsuit filed in February 2011 by the Los Angeles chapter of
the Council on American Islamic Relations, (CAIR) the American Civil Liberties Union of Southern California, and the lawfirm Hadsell, Stormer, Keeny, Richardson and Renick.
The lawsuit alleges a discriminatory investigation between 2006 and
2007, wherein the FBI collected detailed records on Muslims at various
mosques across Orange County, including extensive records on their
religious practices as well as hundreds of hours of audio and video
recordings at prayers and religious events. The plaintiffs–Yassir Fazaga, Imam of Mission Viejo's Orange County Islamic Foundation, Ali Malik, and Yassir Abdel Rahim–sued on behalf of Muslim community members; they demand
the FBI expunge all of those records, and they are seeking damages
for emotional distress.
But whether the allegations are true or not, further litigation could lead to disclosure of sensitive information and threaten national security, said Attorney General Eric Holder, who invoked the state secrets privilege to have the case dismissed in August, 2011.
The deputy executive director of CAIR-LA Ameena Mirza Qazi contended that “[state secrets] should not be used to prevent those wronged by the government from having their day in court.”
The United States government, however, holds a successful track record in getting
lawsuits dismissed on grounds of state secrets privilege, which falls under national security. Another group of mosques and organizations, including Anaheim-based Islamic Shura Council of Southern California, filed a lawsuit against the FBI in 2007 after the agency wouldn't allow them to review additional records of surveillance over their activities. Like the aforementioned case, the government invoked national security concerns to prevent the files from being released.
That five-year battle ended on a disappointing note. In April 2012, a federal judge ruled the Muslim groups could not see the documents, but it also rebuked the government for misleading the court on the existence of those files.
But another group of Orange County Muslims hopes to have its day in court soon. Stay tuned.
UPDATE, AUG. 14, 5:36 P.M.: Judge Cormac Carney dismissed most of the claims in a lawsuit against the FBI under the state secrets privilege assertion.
U.S. Justice Department attorney Anthony Copolino argued that further litigation of the case is at odds with the law.
“It should be obvious that you don't reveal who is the subject of a counterterrorism investigation,” he said in heated arguments in court. Coppolino contended that doing so, in addition to how and why it was done, would reveal the government's motives and “alert adversaries as to who's being investigated.”
All of which could compromise national security, Coppolino said. The court agreed.
Judge Carney wrote in his conclusion that “when properly invoked, it is absolute–the interest of protecting state secrets cannot give way to any other need or interest.”
Carney, however, allowed a part of the suit against five individual FBI agents to go forward under the Foreign Intelligence Surveillance Act; one of the plaintiffs' attorneys–ACLU's Ahilan Arulanantham–argued in court that the FBI conducted audio and video surveillance over some Muslims because of their religiosity and, in doing so, invaded a “reasonable expectation of privacy.” The violation of the group's first and fourth amendment rights mandates legal scrutiny, Arulanantham said.
That part of the lawsuit will proceed forward in the ongoing case of Fazaga v. FBI.