Pirate's Cove

Da, Comrade, we should totally trust them and dismiss the case. We’ll see if the judges buy what the Stasi, er, FBI, are selling

FBI Claims Secret Evidence Trumps Religious Discrimination Charges in Domestic Spying Case

Before Irvine, Calif. had its own mosque, Muslims would gather at Ali Malik’s home for nightly prayers during Ramadan. But after an FBI informant pretended to be a convert and spied on Malik’s lay congregation—and more than half a dozen Southern California mosques, as well, in the mid-2000s—trust within the community eroded. Malik’s family pulled back. The communal prayers came to an end. “We became closed off and afraid of reaching out,” he says.

Shocked by the experience, Malik and two other plaintiffs sued the FBI, accusing the agency of religious discrimination and unlawful government surveillance. But more than a decade later, the U.S. justice system is still wrestling with whether government secrecy trumps such claims of religious discrimination in domestic national security cases.

Malik’s case, FBI v. Fazaga, came before the U.S. Court of Appeals for the Ninth Circuit on Thursday. The government argues that all the plaintiffs’ claims alleging religious discrimination need to be dismissed because it has secret evidence that would exonerate the FBI if made public. “Since the court cannot hear evidence as to who the FBI investigated or why, it cannot adjudicate whether the government targeted Plaintiffs based on their religion,” the FBI has said, in legal filings.

That’s not the way our legal system is supposed to work, though, it’s slightly different in civil, versus criminal, cases. Malik and the others are the ones who sued. But, really, if the government has secret evidence on the plaintiffs and refuse to reveal it, that’s a travesty, as the government should not be keeping secret spying files on U.S. citizens. This isn’t Russia, China, or the old East Germany.

The plaintiffs argue that they don’t need secret evidence to win their argument and that the case should proceed without this information; the religious discrimination claims should not be entirely dismissed, they say. The government has so far not invoked the state secrets privilege for allegations of unlawful surveillance. The plaintiffs are represented by attorneys from the ACLU SoCal, the Center for Immigration Law and Policy at UCLA School of Law and the Council on American-Islamic Relations of Greater Los Angeles.

Mohammad Tajsar, senior staff attorney at ACLU SoCal, says that since 9/11, the government has repeatedly deployed the state secrets defense to kill cases. “It has basically prevented judicial oversight over a whole bunch of desperately abusive national security related policies—things like warrantless wiretapping and extrajudicial assassination,” he says.

The ACLU might not want to invoke things that are irrelevant: those things were mostly done overseas, and not part of the FBI. Stick with what the FBI did, and, if they went overboard in spying on residents. And, were Malik and the two others citizens at the time, or just residents? They should demand that secret information that involves themselves.

A more recent analysis in The Supreme Court Review by Laura Donohue, a professor of law and national security at the Georgetown University Law Center, says that over the past 15 years, the government has increasingly begun to assert the state secrets privilege in overly broad ways to cover entire categories of information. This happens even in cases when information poses no real risk to national security and is already in the public domain, she writes. This is a “radical departure from how the privilege has been understood for centuries,” she says.

Eight of those years were under Obama, two under Biden. Hmm.

A lot of evidence about the FBI’s surveillance of Malik and his co-plaintiffs is already publicly available. Much of it details the activities of the pretend convert, a longtime informant for the bureau named Craig Monteilh and is drawn from Monteilh’s own sworn declarations, media reports and statements from FBI agents in other cases. Monteilh, who had served time for fraud, left his key fob and mobile phone in places to record conversations when he was not around. He recorded hundreds of hours of video inside mosques, homes and businesses. He told two other Muslims that “we should bomb something.” He says he was told by his FBI handlers to date Muslim women and have sex with them to get more information. The FBI dubbed the surveillance program “Operation Flex”—a nod to Monteilh’s strategy of using workout tips to befriend young Muslim men.

Were there warrants involved for this? Did he have permission to make those secret recordings and videos? This sounds much like entrapment, and there were no criminal charges levied. The FBI has yammered periodically about “saving Democracy”, yet, they want to act like a secret police force. If the FBI was seeing specific information that the mosque and/or members had links to radical, extremist, terrorist Islamic forces, sure, spy, but, if there’s no reason, that is shady, and they need to prove themselves.

Read: Shady FBI Says “Trust Us, We Have Secret Information” In Domestic Spying Lawsuit »