The United States Supreme Court is set to hear arguments in a case that will determine whether the Federal Bureau of Investigation (FBI) can invoke “state secrets” privilege to avoid a lawsuit over its monitoring of Muslim communities and places of worship in the wake of the September 11, 2001 attacks.
Plaintiffs in the case, which stems from a lawsuit originally filed in 2011, say the US government has for years used national security to dodge accountability. That has deprived them of a chance to present in court a mountain of evidence they say shows the FBI pursued a “dragnet” surveillance campaign against the Muslim community in Southern California that included secret audio and video recording and was motivated solely by the religion of those monitored.
That surveillance came amid a slew of early 2000s US government tactics targeting Muslims in the name of national security that continue to cast a long shadow, even as they remain shrouded in secrecy.
“We’ve been feeling violated for the past 15 years now, at least since the time that I found out what the FBI was doing,” said Sheikh Yassir Fazaga, who was an imam at the Orange County Islamic Foundation in Mission Viejo, California, when the agency sent a paid informant posing as a convert to monitor his mosque and others in the area beginning in 2006.
On Monday, Nov. 8, 3 Muslim plaintiffs will give oral arguments at the #SCOTUS challenging the #FBI's illegal spying on them & their communities. Join us to hear their arguments & rally in support of them. Read the press release & thread for event details.https://t.co/BntRjAACBL
— CAIR National (@CAIRNational) November 4, 2021
The religious leader is a plaintiff in the case, Fazaga v FBI, along with Ali Uddin Malik and Yasser Abdelrahim, both congregants at the Islamic Center of Irvine in Irvine, California.
A lower court in 2012 dismissed the trio’s initial lawsuit, ruling in favour of the FBI’s position that, in part, argued that letting it proceed would pose a national security risk. A federal appeals court later sided with Fazaga, Malik and Abdelrahim, saying the lawsuit should proceed, advancing the case to the US’s top court.
‘Sorry, but you have to just trust us’
For a decade spanning three presidential administrations, the government’s line of defence to the lawsuit has remained the same, said Ahilan Arulanantham, the faculty co-director of the Center for Immigration Law and Policy at UCLA, who will argue on behalf of Fazaga, Malik and Abdelrahim at the Supreme Court on Monday.
“The government’s position has been, ‘We don’t (monitor) people solely because of their religion’,” he said. “Anything more that we tell you at all would risk national security and therefore can’t be shared with anyone, even the court in secret.
“The government’s position amounts to: ‘Sorry, but you have to just trust us’,” he said.
The FBI, to date, has been shielded from offering a full account of its surveillance activities in Southern California, but has confirmed in unrelated court proceedings that Craig Monteilh was working as an informant for the agency at several mosques in Orange County in 2006 and 2007.
The agency has maintained, according to court documents, that “it did not engage in unconstitutional and unlawful practices” and that it “undertook reasonably measured investigatory actions in response to credible evidence of potential terrorist activity”.
Other details have come from accounts from congregants and community members who came into contact with Monteilh, as well as Monteilh’s own lengthy accounts of his work as an informant.
The 2011 lawsuit says that Monteilh, at the behest of his FBI handlers, recorded hours of video and audio inside mosques, at religious meetings, inside people’s homes, casting a wide and often indiscriminate net by infiltrating diverse groups at the various Islamic institutions.
The infiltration was particularly stinging for Fazaga, who as a prominent leader had just months earlier moderated a community meeting with the head of the FBI’s Los Angeles office, Stephen Tidwell. The official had assured those gathered that the agency would not send secret monitors into the community.
“The potential for abuse is just so unbelievably great,” Fazaga said of the FBI’s broad national security claims.
“Imagine putting recording devices in the confessional in a Catholic church? Imagine that they can do this in a place that is meant to be safe … people trust their religious leaders, people come and share their most intimate details with us,” he told Al Jazeera.
“For the government to have access to these types of setting for no good reason,” he added, “it’s very dangerous and very damaging.”
The 2011 lawsuit notes that no convictions came from Monteilh’s monitoring.
However, several congregants took it upon themselves to report Monteilh – and his persistent fixation on violence – to authorities.
As more details of the FBI’s surveillance came to light, particularly when Monteilh went public in 2009, distrust towards law enforcement, and within the Muslim community in Orange County, became pervasive, Fazaga said.
Without accountability from the government, that environment remains largely unchanged, he said.
“The most important element in any healthy human relationship is trust. And when you erode that trust, you literally cannot have a healthy community,” he said.
“People start doubting. They start suspecting and then they start distancing themselves.”
He added that non-Muslims converts have faced particular wariness in the years since.
“Historically speaking, this has always been a moment that the Muslim community celebrates,” he said. “Now … I’d be lying if I tell you people aren’t questioning: Is this for real? is this for show? Is this the next informant in our community?”
‘Symbolically and doctrinally’
Lawyer Arulanantham said the Supreme Court proceedings could be impactful both “symbolically and doctrinally”.
“There’s been very little accountability for the long history of discrimination against Muslim Americans since 9/11, and this case affords them the rare opportunity for that,” he told Al Jazeera.
“Doctrinally,” he added, “for the courts to say that there is a mechanism by which the government can be held to account when it engages in discrimination on the basis of religion, even in national security contexts, would be very important.”
Monday’s arguments will centre on the government’s state secrets privileges, a doctrine stretching back to the early 1800s that has been refined in subsequent court rulings to regulate when national security can be cited to withhold information.
The arguments will also likely focus on the 1978 Foreign Intelligence Surveillance Act, which regulates domestic surveillance. The law was passed in the wake of revelations of government surveillance of civil rights leaders and anti-war protesters.
Surveillance of Muslim communities in the wake of the September 11 attacks have continued to cast a long shadow in the US [File: Matt Rourke/The Associated Press]Fazaga, who is now an imam at the Memphis Islamic Center in Mississippi, said a ruling in favour of the FBI’s national security claims “will cement the belief that Muslims in the US are second-class citizens”.
He said he is still regularly approached by other Muslims from across the country who share their own experiences with the FBI’s surveillance practices in the two decades since 9/11.
Still, he agreed the case goes far beyond one faith group and urged the wider US population to pay attention.
“Muslim communities have immediately taken on the burden of this,” he said.
“But ultimately the good that that comes out of it is not just for the Muslim community. It’s for all citizens.”
Fazaga, Malik and Abdelrahim are also being represented by the American Civil Liberties Union (ACLU), the Council for American Islamic Relations (CAIR), and the law firm of Hadsell Stormer Renick and Dai.
A decision in the case is expected some time before the end of the current Supreme Court term, which ends in June 2022.
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