https://www.yahoo.com/news/fbi-claims-secret-evidence-trumps-234914514.html
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.
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.
Since 9/11, the government’s use of the state secrets privilege has increased dramatically. A 2008 congressional report found that the Bush administration raised the privilege in over 25% more cases per year than previous administrations had, and sought dismissal in over 90% more cases. “There are serious consequences for litigants and for the American public when the privilege is used to terminate litigation alleging serious Government misconduct,” the report stated. “For the aggrieved parties, it means that the courthouse doors are closed—forever—regardless of the severity of their injury.”…
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….
“There are a number of intermediate options between ‘the case can’t go forward’ and ‘everyone gets to see everything,’” says David Pozen, a law professor at Columbia University and expert on government secrecy. The federal bill would have made it so only the judge could see evidence in some cases; in others, the plaintiffs’ counsel could see the evidence with a security clearance and the requirement that they could not take it home….
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.
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.
Since 9/11, the government’s use of the state secrets privilege has increased dramatically. A 2008 congressional report found that the Bush administration raised the privilege in over 25% more cases per year than previous administrations had, and sought dismissal in over 90% more cases. “There are serious consequences for litigants and for the American public when the privilege is used to terminate litigation alleging serious Government misconduct,” the report stated. “For the aggrieved parties, it means that the courthouse doors are closed—forever—regardless of the severity of their injury.”…
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….
“There are a number of intermediate options between ‘the case can’t go forward’ and ‘everyone gets to see everything,’” says David Pozen, a law professor at Columbia University and expert on government secrecy. The federal bill would have made it so only the judge could see evidence in some cases; in others, the plaintiffs’ counsel could see the evidence with a security clearance and the requirement that they could not take it home….
