Ninth Circuit Orders New Look at Mosque Surveillance Case

SAN FRANCISCO (CN) – A Ninth Circuit panel resurrected a class action Thursday challenging the use of an FBI informant to infiltrate several Los Angeles and Orange County mosques and secretly collect information on Muslims for more than a year.

In its long-awaited ruling, the panel said the trial court should not have dismissed the Muslims’ constitutional claims outright to protect state secrets, and should have instead privately reviewed the evidence to determine whether the surveillance was unlawful.

“The Ninth Circuit’s decision is a victory for everyone who believes in the rule of law,” senior counsel Ahilan Arulanantham with the ACLU’s Southern California chapter said in a statement Thursday. “It rejects the government’s request that the courts close their eyes to this shameful chapter of FBI surveillance of Muslims because it was a ‘state secret.’ Most important, it creates the possibility of justice for our clients and others who were targeted just because of their religion. We look forward to holding the government accountable before the district court.”

The case dates back to 2006, when FBI agents Kevin Armstrong and Paul Allen directed undercover informant Craig Monteilh to gather information on Muslims as part of a counterterrorism investigation called “Operation Flex.” 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 Monteilh began to express his readiness to engage in violence, and a mosque leader reported him to the police. The Irvine mosque sought and obtained a restraining order against Monteilh in June 2007, and his identity as an informant was exposed during a 2009 naturalization fraud case against Ahmadullah (Ahmed) Niazi, a mosque member who reported Monteilh’s statements to the police.

Yassir Fazaga, Ali Uddin Malik and Yasser Abdelrahim, three Muslims from Southern California, filed a class action in 2011 on claims of illegal spying under the Foreign Intelligence Surveillance Act and a host of constitutional rights violations. U.S. District Judge Cormac Carney dismissed all but the FISA and Fourth Amendment claims in 2012, finding state secrets privilege.

Carney, who said in his ruling that he wrestled the “difficult balance that the state secrets doctrine strikes between the fundamental principles of liberty, including judicial transparency, and national security,” nevertheless found adjudicating many of the class’ claims would mean the exposure of classified information.

“In struggling with this conflict, the court is reminded of the classic dilemma of Odysseus, who faced the challenge of navigating his ship through a dangerous passage, flanked by a voracious six-headed monster, on the one side, and a deadly whirlpool, on the other. Odysseus opted to pass by the monster and risk a few of his individual sailors, rather than hazard the loss of his entire ship to the sucking whirlpool,” Carney wrote. “Similarly, the proper application of the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security.”

The Ninth Circuit didn’t entirely agree.

“We conclude that some of the claims dismissed on state secrets grounds should not have been dismissed outright. 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,” wrote U.S. Circuit Judge Marsha Berzon in a whopping 103-page opinion.

Berzon was joined by U.S. Circuit Judge Ronald Gould and U.S. Senior District Judge George Caram Steeh III, sitting by designation from the Eastern District of Michigan. All are Bill Clinton appointees.

“Muslims in this country deserve the same freedom that protect all other religious groups: the right to practice their faith in peace without fear of government intrusion, said Fazaga said in a statement. “We are grateful that today’s decision gives our community in Orange County the opportunity to protect these rights in court.”

Turning to the claims dismissed by Carney, the panel found the men could move forward on their First and Fifth Amendment claims and their Religious Freedom Restoration Act claim, and held they could seek expungement of the information collected about them.

In addressing the FISA and Fourth Amendment claims, the appellate panel found Fazaga, Malik and Abdelrahim had a reasonable expectation of privacy that their conversations would not be recorded in the mosque.

“Plaintiffs did have a privacy-grounded reasonable expectation that their conversations in the mosque prayer hall would not be covertly recorded by an individual who was not present where plaintiffs were physically located and was not known to be listening in,” Berzon wrote, adding that the prayer hall – which imposes a number of rules designed to protect privacy, sanctity and confidentiality – confirms that a mosque is “not an ordinary public place.”

But the judges’ ruling also held the FBI agents are entitled to immunity on the surveillance claims arising from the mosque recordings.

“As of 2006 and 2007, however, no federal or state court decision had held that individuals generally have a reasonable expectation of privacy from surveillance in places of worship,” Berzon wrote.

As for recordings made by devices planted by FBI agents Allen and Armstrong in Abdelrahim’s house and Fazaga’s office, the judges found a reasonable expectation of privacy has been clearly established in homes, cars, offices and for phone calls.

Berzon said the panel saw no reason why the district court couldn’t review this surveillance to determine its lawfulness while “taking care to avoid its public disclosure.”

She also said the appellate court shared in Carney’s struggle with finding the balance between national security and individual liberty, though it came to a different conclusion.

“In holding, for the reasons stated, that the government’s assertion of the state secrets privilege does not warrant dismissal of this litigation in its entirety, we, too, have recognized the need for balance, but also have heeded the conclusion at the heart of Congress’s enactment of FISA: the fundamental principles of liberty include devising means of forwarding accountability while assuring national security,” Berzon wrote.

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