WASHINGTON (CN) — Wading into a decade-old class action, the Supreme Court agreed Monday to look at the FBI's use of an informant to collect information from several Los Angeles and Orange County mosques for more than a year.
The FBI petitioned the high court to take up the case last year, saying it raises “exceptionally important questions” regarding the Executive Branch’s responsibility to protect national security.
For the Council on American-Islamic Relations, however, it is the reason why this case was filed that is important to remember as it heads to high court.
“The FBI infiltrated several mosques in Southern California, planted informants, and targeted Muslim Americans for illegal spying solely because of their religion,” Hussam Ayloush, executive director of CAIR Los Angeles, said in a statement Monday. “The FBI’s actions were a clear violation of our Constitution and revealed that the FBI viewed, and continues to view, the American Muslim community as second-class citizens who are suspects until proven innocent.”
Along with other groups and attorneys, CAIR-LA represents a Southern California imam and two practicing Muslims in one of several cases that explores how the FBI began profiling Muslim communities after the Sept. 11, 2001, terrorist attacks.
They say the FBI began surveilling them in 2006 as part of a counterterrorism investigation called Operation Flex. At the direction of FBI agents Kevin Armstrong and Paul Allen, undercover informant Craig Monteilh began attending the Islamic Center of Irvine, publicly declaring his Muslim faith during a prayer in front of hundreds of members and adopting the name Farouk al-Aziz.
Monteilh met with specific targets, encouraged people to visit jihadist websites, worked out with certain people at the gym, and tried to obtain compromising information that could be used later to enlist other informants. Virtually all of Monteilh’s interactions were recorded using a cellphone, two key fobs with audio recording capabilities, and a camera hidden in a button on his shirt.
The investigation unraveled in 2007 when a mosque leader called the police because Monteilh had begun to express his readiness to engage in violence. That June, the Irvine mosque sought and obtained a restraining order against Monteilh, and two years later his identity as an informant was exposed during a naturalization fraud case against Ahmadullah (Ahmed) Niazi, a mosque member who reported Monteilh’s statements to the police.
In 2011, imam Yassir Fazaga, Ali Uddin Malik and Yasser Abdelrahim brought a class action alleging a host of constitutional rights violations and spying under the Foreign Intelligence Surveillance Act. U.S. District Judge Cormac Carney dismissed all but the FISA and Fourth Amendment claims, but the Ninth Circuit breathed new life into several of the other claims in 2019. Whereas Carney found that the FBI's state secrets privilege could foreclose claims with the potential to expose classified information, the Ninth Circuit called such assertions premature.
“Instead, the district court should have reviewed any state secrets evidence necessary for a determination of whether the alleged surveillance was unlawful following the secrecy protective procedure set forth in FISA,” U.S. Circuit Judge Marsha Berzon wrote in a 103-page opinion.
After the circuit denied a petition to rehear the case last year, the FBI asked the Supreme Court to step in.
“The court of appeals’ decision has the startling consequence of transforming a limited provision of FISA that was designed to safeguard national security information into a mechanism for overriding the Executive’s invocation of the state-secrets privilege and for adjudicating the merits of private-party claims for substantive relief on the basis of state secrets,” the U.S. Solicitor General's Office wrote in December, using shorthand for the Foreign Intelligence Surveillance Act.
Fazaga and his co-plaintiffs urged the Supreme Court to turn down the case in April. Their 34-page response brief was filed by CAIR-LA and attorneys from Hadsell Stormer; the University of California, Los Angeles, School of Law, and the ACLU Foundation of Southern California.
“This case is still at the motion to dismiss stage,” the brief argues. “The district court may never have to apply FISA’s ex parte in camera review procedures because, in the district court, the Government has now advanced a threshold objection: that Respondents have not shown they are ‘aggrieved parties,’ and therefore cannot invoke these procedures.”
For the United States, however, the Ninth Circuit’s decision conflicts with the Supreme Court’s “clear admonition that courts should not endanger national security by allowing state secrets to be used in litigation.”
“At a minimum, there exists no clear statement ... in FISA, that Congress intended to bring about such a startling change in the Executive’s authority to protect national-security information from compelled disclosure in litigation,” the FBI's December petition states.
Fazaga and the other Muslims meanwhile deny that there is any circuit split to settle. “Every court to address the question has held that ... Congress displaced the state secrets privilege with respect to materials relating to electronic surveillance that, according to the Government, cannot be disclosed without harming national security,” their brief states.
They say Congress had provided for in camera review “where the government seeks to ‘use’ secret information regarding electronic surveillance," pointing to precedent that says dismissal is not a remedy to privilege. "The privileged information is excluded and the trial goes on without it," the Supreme Court said in the 2011 case General Dynamics Corp. v. United States.
Acting Solicitor General Elizabeth Prelogar did not immediately return a request for comment Monday. Ahilan Arulanantham, former legal director of the ACLU Foundation of Southern California and now a law professor at UCLA School of Law, said Monday he is looking forward to presenting the case before the Supreme Court.
Per their custom, the justices did not issue any comment about the case in taking it up. It was the only grant of certiorari on Monday's order list among dozens of rejections.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.