FBI Wins Narrow Victory in Surveillance Case

In the wake of the September 11, 2001 terror attack on the Twin Towers in New York City, America was besieged with fear, suspicion, and hostility towards Muslims and anyone associated with the Islamic faith. Not even the nation’s First Red Scare (fear of communists, leftists, and Russians) from 1918 into the early 1920s or its Second Red Scare (fear of communism in government, culture, and education) from the late 1940s into the mid-1950s would match the 9/11 “Green” Scare.

 

The tragedy inherent in these social “scares” is that the fear that triggered them ultimately proved unfounded. But each scare left inedible collateral damage on the nation’s rule of law, its criminal justice system, and the very moral integrity of its citizenry.

 

Worse yet is the lasting damage inflicted upon this country and the rule of law by law enforcement officials like Attorney General A. Mitchell Palmer and FBI Directors J. Edgar Hoover and Robert Mueller, and fear-mongering politicians like Sen. Joseph McCarthy, Defense Secretary Donald Rumsfeld, and President Donald Trump. The “scares” led to:

• The imprisonment of thousands of innocent people ensnared in The Palmer Raids, 
• The execution of innocent people like Ethel Rosenberg by Director Hoover, 
• Official purges from jobs and careers of thousands of loyal Americans by Sen. McCarthy, and 
• Religious surveillance by Director Mueller’s FBI that deliberately framed people with trumped-up charges,
•  Torture policies of so-called “enemy combatants” by Defense Secretary Rumsfeld, and 
• Attempts by President Trump to ban Muslims from entering the U.S.

 

Post 911 Intelligence Gathering, Surveillance

 

Under its post-9/11 investigative strategy, the FBI, under the leadership of Director Mueller, recruited thousands of individuals to serve as informants within American Muslim communities and places of worship. 

For example, in 2006 and 2007, the FBI paid an informant to infiltrate the Muslim community in Orange County, California, to either gather or fabricate terrorism information. That investigation was launched, as were dozens of others around the country, based solely on religious beliefs, a violation of both the Constitution and the Religious Freedom Restoration Act of 1993.

 

In fact, at the time the Orange County investigation was undertaken, Mueller’s FBI training manual instructed its agents to view law-abiding mainstream Muslims as “terrorists sympathizers,” referred to Prophet Muhammad (PBUH) as a “cult leader,” and assumed that “devout Muslims” are violent. 

 

Inherent in these horrific FBI investigative protocols was the belief of agents that they could approach individuals within Muslim communities and compel them to work as informants under threat of prosecution or inclusion on the “No-Fly List.”

 

Informants Paid to Target Muslims

 

The Orange County investigation focused on Muslims in the Orange County area and specifically included spying on local mosques and community leaders. 

 

In a sworn declaration, it was revealed that the FBI recruited Craig Monteilh and directed him to pose as a Muslim and gather information on the community indiscriminately. This informant infiltrated the Muslim community and collected:

• Hundreds of phone numbers and thousands of email addresses of Muslims, 
• Hundreds of hours of video recordings made inside mosques, homes, and other private locations; and 
• Thousands of hours of audio recordings of conversations and public discussion groups, classes, and lectures. 

 

The surveillance operation ended when the informant, at the FBI’s instruction, began asking members of the community about violent jihad, and some of those individuals reported the informant to the FBI and

local police.

 

In response, Imam Yassir Fazaga, Ali Uddin Malik and Yasser Abdel Rahim, brought a class action lawsuit againt the United States, the FBI, and two FBI agents alledgeing they had violated their rights under the the Establishment Clause; the Free Exercise Clause; the Fourth Amendment; the equal protection component of the Fifth Amendment’s Due Process Clause; the Religious Freedom Restoration Act, 42 U. S. C. §2000bb et seq.; the Federal Tort Claims Act, 28 U. S. C. §1346; FISA, 50 U. S. C. §1810; the Privacy Act, 5 U. S. C. §552a; and California law. 

 

Feds Raise State Secrets to Block Discovery

 

During pretrial discovery, attorneys for the three men sought disclosure of information in possession of the FBI that would support their lawsuit claims. The FBI and its agents moved to dismiss the claims by invoking the State Secrets Privilege, “a judicially created evidentiary privilege that allows the federal government to resist court-ordered disclosure of information during litigation if there is a reasonable danger that such disclosure would harm the national security of the United States.” 

 

Federal district courts, as was the case in the Orange County Muslims lawsuit, will typically defer to a federal agency’s invocation of the state secrets privilege, most often without inspecting the alleged privilege information to determine whether it is relevant in a given lawsuit. 

 

The FBI and its agents knew the state secrets privilege was the guardrail that would conceal their criminal wrongdoing against the Orange County Muslim community. The federal district judge sitting on the Fazaga case did not disappoint and dismissed most of the claims against the FBI, citing state secrets.  

 

In February 2019, the Ninth Circuit Court of Appeals overturned the district court’s ruling on the state secrets privilege issue. The appeals court concluded that “some of the claims dismissed on state secrets grounds should not have been dismissed outright.” Instead, the district court should have reviewed the state secrets evidence to determine whether the alleged surveillance was unlawful following the procedures contained in the Foreign Intelligence Surveillance Act. The appeals court reasoned that FISA displaced the state secrets privilege.  

 

The government sought and secured certiorari review in June 2021 before the U.S. Supreme Court.

 

FISA Does Not Displace State Secrets Privilege

 

In a unanimous decision issued on March 4, 2022, the Supreme Court sided with the FBI and its agents by remanding the case back to the Ninth Circuit for further proceeding, concluding that FISA does not displace the state secrets privilege. The high court concluded that the government could invoke the state secrets privilege but stopped short of finding the U.S. District Court was correct in its summary dismissal of the case. Further proceedings will now be needed to answer those questions.

 

Peter Bibring, senior counsel with the ACLU of Southern California, seeing the glass half full, interpreted the court’s decision this way: “The Supreme Court today refused the government’s invitation to extinguish our clients’ religious discrimination claims simply because the government invokes ‘state secrets.’ The decision allows our clients to continue to fight in lower courts for their right to hold the FBI accountable for its discriminatory surveillance of Muslim Americans.”

 

It is time for the FBI, Homeland Security, and other government agencies to cease their unrelenting unlawful and criminal efforts to link Muslim Americans, and Islam, to terrorists. It is a shameful Orwellian-inspired effort at fear-mongering to justify intrusive surveillance, unnecessary entrapment, and the demonization of a law-abiding community.

 

The government would better serve the public by investigating violent white supremacists who lead the country in the number of violent, hate-based crimes committed.    

 

Ironically, the individuals who participated in the January 6, 2021 insurrection and stormed the nation’s Capitol Building intent on subverting democracy and hanging the vice president of the United States have virtually escaped severe criminal charges. Lawmakers who regularly attend white nationalist rallies sponsored by white supremacist groups that openly call for the American government’s violent overthrow have likewise escaped criminal sanctions.

 

Calls for the violent overthrow of our government, and the complicity of those who praise their efforts, are the nation’s most imminent threat. While this movement may have a following in the Fox News audience, it has no measurable following in the American Muslim community. Perhaps the FBI should refocus its surveillance efforts on the real criminals amongst us.

 

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