Obama, once a critic of the state secrets doctrine, has invoked it repeatedly. But critics say his latest use of Bush’s favorite get-out-of-court-free card is different.
The state secrets privilege—perhaps the most powerful weapon in the government’s legal arsenal—has a complicated history. For years, Democrats, including then-Sen. Barack Obama, accused the Bush administration of overusing of the privilege, which allows the government to quash cases that involve national security before a court even hears evidence. Then, after Obama took office, his Justice Department used this get-out-of-court-free card repeatedly.
Last week, the DOJ invoked the state secrets privilege yet again. But this case, civil liberties groups say, is different.
The case, Fazaga v. FBI, stems from the purported actions of Craig Monteilh, a 49-year-old convicted criminal who claims that he spent 15 months in 2006 and 2007 infiltrating mosques in Orange County, California, as part of an undercover FBI investigation known as “Operation Flex.” The Fazaga case, which the ACLU and CAIR filed in February 2011, claims that the FBI utilized Monteilh to “collect personal information on hundreds and perhaps thousands of innocent Muslim Americans in Southern California.” The ACLU says that the FBI investigation “violated the Constitution’s fundamental guarantee of government neutrality toward all religions.” For evidence, the two groups point to a somewhat problematic source: Monteilh.
The ACLU and the Council on Islamic American Relations, held a news conference Wednesday in downtown Los Angeles to announce a lawsuit filed Tuesday on behalf of three plaintiffs. They accuse the FBI and seven employees of infringing on the 1st and 4th amendment rights of hundreds of members of the local Muslim community by using paid informants to infiltrate mosques and record interactions with its members. They claim that the FBI informant, Craig Monteilh, violated members’ civil rights and subjected them to “indiscriminate surveillance” because of their religion.
For over 14 months between 2006 and 2007, FBI agents planted an informant (Mr Monteilh) in Orange County mosques who posed as a convert to Islam and through whom the FBI collected names, telephone numbers, e-mails, and other information on hundreds of California Muslims. Sheikh Yassir Fazaga, Ali Malik, and Yassir AbdelRahim – plaintiffs in the case-are three of the many individuals who came in contact with the bureau’s informant.
F.B.I. officials said that they could not comment on the lawsuit, but that they based any investigation on allegations of criminal activity. They said that they did not single out specific religious or ethnic groups.
Mr. Monteilh has also sued the F.B.I., saying that it failed to protect him from charges of grand theft that he says were related to his work in a drug-ring operation. The class-action lawsuit seeks a court order for the F.B.I. to destroy or return the information Mr. Monteilh obtained.
Since the 2001 terrorist attacks, the FBI has used informants successfully as one of many tactics to prevent another strike in the United States. Agency officials say they are careful not to violate civil liberties and do not target Muslims. But the FBI’s approach has come under fire from some Muslims, criticism that surfaced again late last month after agents arrested an Oregon man they said tried to detonate a bomb at a Christmas tree-lighting ceremony. FBI technicians had supplied the device.
In Irvine, California, a sting backfired when the infiltrated FBI informant, Craig Monteilh, himself was turned in by the mosque leaders as a possible jihadist. Muslims were so alarmed by his talk of violent jihad that they obtained a restraining order against him. He had helped build a terrorism-related case against a mosque member, but that also collapsed.
Compounding the damage, Monteilh has gone public, revealing secret FBI methods and charging that his “handlers” trained him to entrap Muslims as he infiltrated their mosques, homes and businesses. He is now suing the FBI.
Some Muslims in Southern California and nationally say the cascading revelations have seriously damaged their relationship with the FBI, a partnership that both sides agree is critical to preventing attacks and homegrown terrorism.
“The FBI wants to treat the Muslim community as a partner while investigating us behind our backs,” said Kurdi, the Loyola student. “They can’t have it both ways.”
Muslim-American groups are accusing the FBI of planting moles in mosques across the U.S.
Suspicions amongst Muslims have risen greatly since February, when Craig Monteilh publicly stated the FBI had used him to infiltrate mosques and spy on Muslims in Orange County, California. The FBI has not responded to Monteilh’s story, which leads many Muslims to believe it is true and that he may not be the FBI’s only spy.
Monteilh stated he was offered to attend a terrorist training camp in Yemen or Afghanistan by Ahmadullah Niazi of Irvine. Niazi was charged with misusing a passport, perjury, and other federal crimes last month, and has been accused of being related to a bodyguard for Osama bin Laden.
The American Muslim Task Force on Civil Rights and Elections and the Muslim Public Affairs Council (MPAC) has a history of working proactively with the FBI in reducing the risks of radicalism, and are thus concerned at the FBI’s lack of explanation to them and other Muslim leaders on whether this actually happened and if so, why.
While law enforcement agents at the FBI won’t comment specifically on the California case, Robert Heibel, director of the Institute for Intelligence Studies at Mercyhurst College in Erie, Pa. says “if they had information about someone at a mosque or church being involved with terrorism, they would have an obligation to investigate. Should the FBI give attention to potentially dangerous religious extremists?” Heibel said. “In a case like that, the agents aren’t targeting a religion. They’re targeting a potential lawbreaker.”