Want to Sue the FBI for Spying on Your Mosque? Sorry, That’s Secret.

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.