Muslim Americans who are suing the Federal Bureau of Investigation for sending an informant to spy on Orange County mosques will keep fighting their case in lower courts following a narrow Supreme Court ruling earlier this month that favored the FBI.
The Supreme Court ruling could mean the FBI can again invoke a secrecy privilege because the bureau claims it could be a threat to national security by publicly litigating their use of an informant to spy at mosques.
The ruling could make it more difficult to prove the FBI violated First Amendment rights of OC Muslims, their lawyers said.
“The Supreme Court’s ruling is a dangerous sign for religious freedom and government accountability in spying cases,” said Patrick Toomey, senior staff attorney with the ACLU’s National Security Project in a news release.
“Though it is not the end of the road, the ruling makes it harder for those who have had their rights and privacy violated by discriminatory surveillance in the two decades since 9/11 to prove their claims in court,” he continued.
Despite this, the plaintiffs in the FBI v. Fazaga case expressed optimism on the decision made by the Supreme Court Justices at a news conference after the ruling.
“We live to fight another day in our struggle to ensure that Americans who practice Islam, any other religious belief, are protected by the sacred right to religious freedom that our Constitution guarantees to all of us,” said Sheikh Yassir Fazaga, one of the plaintiffs, at a March 4 news conference.
It’s a fight that has waged on since Fazaga and two other Muslims filed their lawsuit about a decade ago.
[Read: Muslims Are Suing The FBI For Spying on OC Mosques; Supreme Court to Hear Oral Arguments Monday]
“I believe the most patriotic thing someone can do is fight for the Constitution so that all Americans can be protected by it and the sacred rights it bestows.”
Ali Malik, another plaintiff in the case.
The Supreme Court overturned a previous ruling by a lower court that said the Foreign Intelligence Service Act – a federal law that regulates government surveillance – trumps the state secrets privilege.
The government has tried to use the “state secrets” privilege, arguing that allowing the case to proceed would reveal information that could threaten national security.
Justices did not decide whether that privilege applies to this particular case.
Read Supreme Court Ruling Here
However, the Supreme Court is allowing the landmark case to continue in lower level courts where it will be determined if the state secrets privilege does apply here, which could get the case tossed out.
History of The FBI v. Fazaga Case in Court
While American Civil Liberties Union lawyers also expressed optimism at the news conference that the case will continue, they said they were disappointed in the decision made by the Supreme Court justices.
“The court’s narrow ruling on the Foreign Intelligence Surveillance Act has made it more difficult to seek redress and accountability for unlawful surveillance,” said Ashley Gorski, Senior Staff Attorney at ACLU’s National Security Project at the conference.
The FBI has tried to use the “state secret privilege” that allows the bureau to keep information secret to get lower courts to toss out the case.
Initially, the case was dismissed by the U.S. District Court in Santa Ana who sided with the Bureau.
But the Ninth Circuit Court of Appeals disagreed and said under the Foreign Intelligence Surveillance Act a judge may review the evidence behind closed doors to determine whether the case can proceed.
[Read: FBI Allegedly Spied on Mosques Illegally in Orange County, Now Supreme Court Will Hear Case]
The Supreme Court ruled however the act does not replace the state’s secret privilege and sent case back to the lower courts – meaning the FBI can still try to invoke the privilege.
But Ahilan Arulanantham, the counsel of record for the plaintiffs, said at the news conference that attorneys for the men have made arguments that it is not appropriate to use state secrets privilege in this case.
Arulanantham also said even without the information the government is keeping secret, they have more than enough evidence to make a case for unlawful surveillance – including the FBI informant’s own admissions.
“He has filed declarations in our case, they’re part of the record,” Arulanantham said. “And what he says is that the FBI told him to spy on people indiscriminately, because they were Muslim.”
FBI Pays Informant to Spy on Mosque; Muslims Report Informant to FBI
In June 2006, roughly five years after 9/11, then Los Angeles FBI Assistant Director Stephen Tidwell attended a forum for the Muslim community at the Islamic Center of Irvine, where he assured residents that the bureau would not send covert informants to mosques to monitor their community.
The forum was held after the Orange County Register published a story quoting an FBI agent who said the bureau was aware of a large number of Muslims at UC Irvine and implied the FBI was monitoring Muslims in the county.
It also took place around the same time FBI agents decided to pay and send Craig Monteilh, an informant, to mosques in Orange County posing as a Muslim convert — where he gathered names, contact information and recorded conversations for over a year.
During that time, Monteilh frequented several mosques in Orange County, including the Islamic Center of Irvine and the Orange County Islamic Foundation, where Fazaga was the Religious Director.
Muslims at the mosques became wary of Monteilh after a while when he began asking about “violent jihad.”
According to the complaint, in May 2007, Monteilh apparently told a number of people that he had access to weapons and felt a duty to take violent actions after expressing frustrations over the oppression of Muslims globally.
The OC Muslim community eventually reported Montelih — the FBI informant — to the bureau for potentially being a domestic terrorist threat.
The Islamic Center of Irvine also filed a restraining order against Monteilh to bar him from the mosque, which the California Supreme Court granted in June 2007.
According to the complaint, Monteilh attended other mosques for about two months after the restraining order before he “disappeared from the Muslim community.”
Hosam Elattar is a Voice of OC Reporting Fellow. Contact him @helattar@voiceofoc.org or on Twitter @ElattarHosam.