This past May, U.S. Attorney General Merrick Garland, and Homeland Security Alejandro Mayorkas told the U.S. Senate Appropriations Committee that white supremacists are “the greatest domestic security threat” in the United States.
That assertion is welcome but long overdue, given that the FBI, Homeland Security, and U.S. Justice Department prosecutors have pursued, investigated, surveilled law-abiding American Muslims for the past two decades as the “greatest domestic security threat” in this country.
Thousands of Government Informants Surveilled Muslim Community
Since 9/11, this misguided collective law enforcement effort has diverted countless personnel hours and financial resources from white-collar, organized crime, and white supremacist domestic terrorism investigations. The focus by federal law enforcement on the wholesale gathering of intelligence on the Muslim community was mainly wasted and led to few identifiable threats. Even worse, many of the investigations that led to prosecutions appeared to be the result of entrapping Muslims into government-manufactured domestic terrorism conspiracies.
Writing in the 2015 summer edition of the Journal of Criminal Law and Criminology, Jesse J. Norris, Assistant Professor of Criminal Justice at State University of New York, and Hanna Grol-Prokopczyk, Assistant Professor of Sociology at University of Buffalo, described both the criminal and unethical law enforcement assaults on innocent, law-abiding Muslim communities throughout the United States:
“Since the FBI had been blamed for not preventing the 9/11 attacks, it was determined to take a more aggressive approach to terrorism. The FBI’s strategy after 9/11 has been described as an ‘aggressive, proactive, and preventative’ approach, identifying ‘risks to our Nation’s security at the earliest stage possible and to respond with forward-leaning—preventative— prosecutions.’
“As a consequence of this shift in strategy, a number of terrorism convictions have resulted from the extensive use of thousands of informants, who tend to be ‘working off’ criminal or immigration charges, compensated financially, or both. In many of these cases, informants attempt to induce individuals, often law-abiding Muslim-Americans who express some sympathy for terrorism, to commit terrorist offenses. Several high-profile cases of this nature have led to accusations of entrapment in the media as well as the courtroom.
“In some cases, informants have resorted to extraordinary measures to persuade individuals to engage in terrorism. These have included repeatedly badgering them, offering them jobs, promising hundreds of thousands or even millions of dollars, actively attempting to radicalize them, and even threatening to kill the defendant or commit suicide if he backs out. In numerous sting operations, authorities have provided the means needed to commit the crime (such as bombs) to people who would have stood little chance of acquiring them on their own.
“Critics (including FBI agent-turned-whistleblower Michael German) charge that informants and agents, under intense pressure to generate convictions, are essentially manufacturing terrorism. This results, in their view, in convictions that ostensibly justify the FBI’s vast counterterrorism budget, but which in fact do nothing to advance public safety. Yet defendants in terrorism cases have only asserted the entrapment defense, or the related defense of outrageous government conduct, in a small number of cases. Neither defense has been successful in blocking a terrorism conviction since 9/11.”
Orange County Muslims Take a Stand
One of those thousands of FBI informants was Craig Monteilh. The facts surrounding Monteilh are set out in Fazaga v. Federal Bureau of Investigation, a federal lawsuit filed by attorneys for three Muslim men in the Muslim community of Orange County, California. In their petition, the three men allege the agency conducted illegal searches and targeted them through Monteilh because of their religious beliefs. The case discloses that Monteilh passed himself as a “Muslim convert” to gather information about the Southern California Muslim community and the three Muslim men in particular. As described in their brief, Fazaga’s attorneys reminded the U.S. Supreme Court that “targeting of Muslims was consistent with the operative FBI practice at the time. Its investigative guidelines explicitly stated that religion could be a factor in determining whether to conduct surveillance. And contemporaneous FBI training given by the agency treated Islam as inherently suspicious due to its alleged ties to terrorism.”
FBI v. Fazaga
The district court dismissed several of the plaintiffs’ claims after the Government argued that the “state secrets” doctrine prevented litigation. The federal court of appeals rejected this argument. It held that the trial court should utilize procedures of FISA that would allow the court to review the facts “in-camera ex parte” to determine if surveillance of the aggrieved party was lawfully authorized. “In-camera ex parte” means the trial court could review the evidence in their chambers privately without the attorneys or parties present. The Government again objected to further proceedings while they appealed the decision of the court of appeals to the U.S. Supreme Court. This case has now worked its way to the U.S. Supreme Court, which has agreed to hear the case. The issue the Court decided to tackle is complex. The issue was described by Anne Howe in a June 7 Scotusblog piece as follows:
“The court granted Federal Bureau of Investigation v. Fazaga, the FBI’s petition for review in a case filed against the FBI and several FBI agents by members of the Muslim community in Southern California. Three Muslim men allege that the FBI targeted them because of their religion by using a confidential informant to gather information about Muslims as part of a counterterrorism investigation. The dispute now before the court stems from the Government’s assertion of the state secrets privilege. A federal district court, after agreeing that the privilege allows the Government to withhold certain evidence, dismissed the claims, but the U.S. Court of Appeals for the 9th Circuit reversed that ruling. It held that a provision of the Foreign Intelligence Surveillance Act trumps the state secrets privilege and gives the district court the power to resolve (in private and without requiring all sides to be present) the merit of the men’s lawsuit.”
In their brief in opposition to the certiorari petition, attorneys for the three Muslim men charged—a fact conceded by Monteilh—that the FBI tried to instigate criminal activity in the Orange County Muslim community, which was then, in fact, reported to the FBI by members of the community. The FBI did not instruct Monteilh to get information on “terrorists, spies, or even ordinary criminals” but, instead, to focus his information-gathering on “ordinary Muslims.”
FBI Agents Find Devout Muslims “Suspicious”
Monteilh’s FBI handlers:
- Gave him daily quotas for the number of Muslims he should get contact information from;
- Told him to go to the gym with Muslims to get close to them and obtain information; and
- Gave him a standing order to report on Muslims’ charitable giving, travel plans, and fundraising activities, as well as any lectures, classes, or any other events held at mosques.
To the extent the agents told Montheilh to focus on individuals, “he was to target Muslims who appeared more devout because they were “more suspicious.”
The lawsuit filed by the three Muslim men specifically charged that “... through Monteilh, the Government gathered information on Muslims and their associates consisting of ‘hundreds of phone numbers and thousands of email addresses’; ‘background information on hundreds of individuals’; ‘hundreds of hours of video recordings that captured the interiors of mosques, homes, businesses, and the associations of hundreds of Muslims’; and ‘thousands of hours of audio recordings of conversations . . . as well as recordings of public discussion groups, classes, and lectures occurring in mosques and at other Muslim religious and cultural events.’ The FBI discarded information Monteilh inadvertently gathered on non-Muslims.
“The complaint also alleges that Monteilh repeatedly recorded religious conversations to which he was not a party inside mosques by leaving behind a secret recording device hidden in his car keys. He also planted audio-listening devices in Mr. Fazaga’s office and Mr. Abdel Rahim’s house. And he video-recorded sensitive locations, including mosques, homes, and businesses.”
While the FBI has targeted the nation’s Muslim communities, there have been between 80,000 and 85,000 hate crimes committed in the U.S. Most of these hate crimes were committed by white supremacists, many of who targeted innocent, law-abiding Muslims.
A 2019 global terrorism report issued by the National Consortium for the Study of Terrorism and Responses to Terrorism’s Global Terrorism Database found that white supremacists have killed about nine times as many Americans as other extremists in the U.S. over recent years.
Government Seeks to Prevent Litigation of Surveillance Program
In seeking a petition for writ of certiorari, the Government seeks to prevent the district court from reviewing the evidence, even in-camera, in secret, and determining whether the Government’s surveillance and action against the plaintiffs in Faranza were lawfully authorized and conducted. Such efforts raise many questions about what the Government fears the federal district judge may find.
Hopefully, the Supreme Court will refuse the FBI’s “state secrets” challenge in the Faranza case and allow their lawsuit to proceed with full access to the information the agency is trying to conceal. The Government can be accountable to the people only if they are subject to legal constraints and judicial oversight.
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