US federal court upholds state secrets privilege, foregoing rights of Muslim citizens

A federal court ruled yesterday in favor of the Federal Bureau of Investigation, which had invoked the “state secrets” privilege to dismiss a class action lawsuit filed by the ACLU of Southern California on behalf of several members of the Muslim community in Orange County, California.

The plaintiffs had charged the FBI with violating their constitutional rights by targeting them for indiscriminate surveillance merely because of their religion.

Thus, a federal court has affirmed what the ACLU’s motion warned against: “The Government’s position is that literally any practice, no matter how abusive, can be immunized from legal challenge by being labeled ‘counterterrorism’ and being conducted in secret.”

ACLU cites internment of Japanese Americans

In the ACLU’s statement in opposition to the government’s motion to dismiss, it invoked the case Korematsu v. United States, in which the Supreme Court ominously ruled that it was constitutional to intern Fred T. Korematsu and other citizens of Japanese ancestry during the Second World War. However, the ACLU pointed out that in that case the government was vulnerable to legal challenge, a tenet of democracy that the court’s recent decision has helped do away with.

According to the ACLU’s website, “This marked the first time in recent memory that the government has asserted the state secrets privilege to dismiss a lawsuit brought by United States citizens alleging that a domestic law enforcement operation was violating their constitutional rights.”

Undercover agent spied on Muslim community

The surveillance began in June 2006, when an undercover FBI informant, Craig Monteilh, was sent into a variety of “mainstream mosques” in Orange County, California, posing as an Islamic convert. The FBI code-named this assignment “Operation Flex.”

Monteilh, a former prisoner, describes the progression of his informant work for the FBI in his testimony. After being transferred from the criminal division to the counterterrorism division he studied Arabic and Islam and was trained in the martial arts of Krav Maga, the official self-defense system of the Israeli military.

After a couple of weeks of intensive training, Monteilh commenced “operation flex” by approaching Sheikh Sadullah Khan, an imam at the Islamic Center of Irvine, a mosque in Irvine, California, introducing himself as Syrian-French and interested in converting. After converting, he became known as Farouk al Aziz.

His covert task was not to uncover criminal activities, but rather take “Every opportunity to meet people, get their contact information, meet them privately to get to know them, find out their background, find out their religious and political views, and get any information I could for the FBI” (page 3 of his testimony). He later began audio-recording and then video-taping any encounter he could. 

Undercover agent spied on several mosques

Monteilh testified that one of his superiors had said, “We want to get as many files on this community as possible.” (page 7 of his testimony)

Monteilh, who worked on this assignment until October 2007, testified to collecting information on around ten different mosques.

The ACLU, along with the Council for American-Islamic Relations of Greater Los Angeles and a private firm filed the class-action lawsuit in February 2011.

The Obama administration argued that any divulgence of specifics to the case would “cause significant harm to the national security.”

Once again we are seeing the Obama administration justify its violation of citizens’ constitutional rights—either by spying on them, arresting them or killing them—by invoking the need for secrecy in the name of national security. (Read here or here for more specifics on the current administration’s increasing secrecy.)

Ps. Readers may be somewhat consoled that when the court signed away Muslims’ right to privacy and a judicial review, it did so with reluctance.




So if you find out tomorrow that some government agency planted audio and video surveillance devices in your own home and is listening on your private conversations with your family, that would be perfectly fine with you, because you have nothing to hide.

Charlotte Silver

Charlotte Silver's picture

Charlotte Silver is an independent journalist and regular writer for The Electronic Intifada. She is based in Oakland, California and has reported from Palestine since 2010. Follow her on Twitter @CharESilver.