The Supreme Court on Monday will hear oral arguments on whether the government can invoke the protection of “state secrets” to withhold information about its surveillance of Muslims.
The case, FBI v. Fazaga, began in 2011 when three Muslim men filed a class action lawsuit alleging the FBI paid a confidential informant to surveil them based solely on their religious identity.
The suit has wound its way up to the Supreme Court, which will consider law enforcement’s use of surveillance under the Foreign Intelligence Surveillance Act of 1978, as well as the so-called state secrets privilege defense, which permits the government to block and conceal the release of any information that it deems to be a risk to national security.
Plaintiffs Yassir Fazaga, Ali Malik and Yasser AbdelRahim have argued that the invocation of this law has allowed the government to evade accountability and violate the Constitution and religious freedoms.
It’s impossible to know the full extent of the post-9/11 surveillance apparatus, in part because many programs remain secret. But civil rights groups say Monday’s arguments could have a major impact on future legal challenges against the slew of national security programs that have disproportionately targeted Muslim Americans.
“The case has significant implications where the executive branch has served the state secret privilege in an effort to foreclose accountability for a wide range of illegal government conduct, especially in the two decades since 9/11,” said Patrick Toomey, a senior staff attorney at the ACLU National Security Project.
Welcoming A New Muslim In Orange County
According to court documents and interviews, in 2006, the FBI sent an informant named Craig Monteilh to approximately 10 mosques in Southern California, including the Islamic Center of Irvine in Orange County. Monteilh posed as a convert named Farouk al-Aziz of Syrian and French descent, and it was at the center that he met Ali Malik, a 37-year-old Muslim American and one of the plaintiffs in the lawsuit.
Over the span of 15 months, the local Muslim community embraced Monteilh. After converting to Islam in front of hundreds of people at the mosque, Monteilh quickly befriended local Muslims in and around Orange County. He played video games with some, worked out with others at the local gym, and went on dates with Muslim women.
After Monteilh’s conversion, the imam at the center asked Malik to befriend him and answer any questions he had about navigating the faith. Malik didn’t want Monteilh to feel overwhelmed.
“This was a good opportunity to give back. I thought, ‘I’m going to use this opportunity to teach and engage,’” Malik told HuffPost in an interview. “I love engaging non-Muslims and kind of being a mediator and also a bridge between the Muslim community in the non-Muslim community. That was kind of my thing.”
Unbeknownst to the community, Monteilh had been recording hundreds of hours of audio and video of conversations with Muslim worshippers and sending it all back to the FBI. He also took pictures of license plates and collected hundreds of cellphone numbers and thousands of emails for his FBI handlers.
The FBI paid Monteilh $177,000 in reimbursable expenses during “Operation Flex,” the name given to his program and a nod to his personal commitment to bodybuilding. In return, Monteilh was to provide them with information about the Muslim community in Orange County.
In the two decades after the 9/11 attacks, civil rights advocates have fought to uncover the extent of the nation’s surveillance of Muslims. Among the controversial tactics has been the FBI’s use of informants like Monteilh. At the height of the practice, the bureau maintained a roaster of 15,000 informants, many of them tasked with spying on Muslim communities across the U.S., and some paid as much as $100,000.
In New York, law enforcement placed undercover informants in predominately Muslim communities. They tracked people who attended mosques and schools, chatted up business owners and students, and sent notes, photos and videos back to the New York Police Department. The NYPD also spied on Muslim Americans outside of its jurisdiction, in New Jersey and Connecticut, which led it to pay more than $1 million in damages and legal fees in 2018 to settle three lawsuits.
Surveillance hasn’t been the only issue. Muslim Americans in Dearborn, Michigan, have faced wrongful arrests on terrorism charges, had their bank accounts mysteriously closed, been targeted with racial mapping, and been placed on the no-fly list under security laws passed after 9/11.
Many Muslim Americans still feel the impact of these policies today and say it has broken their trust in law enforcement and the government, inflicted trauma on a new generation of Muslim Americans, and cultivated a community that’s constantly in fear.
Shortly after the two met, Monteilh began to constantly ask Malik about violence in Islam. At first, Malik assumed Montelih had read misinformation online about the concept of jihad and quickly corrected him, noting it was a spiritual struggle.
But Monteilh was persistent, asking Malik each time they hung out. He asked if he knew of imams who supported violence. Malik said he didn’t. Each time Malik tried to explain the basics of the faith including the Quran, the Islamic pillars and the internal struggle for good, Monteilh seemed unsatisfied.
“A couple of scenarios played out in my head. Maybe he was a new Muslim and he had been exposed to some of these ideas online … and I wanted to course-correct,” said Malik. “So I gave him the benefit of the doubt, but I was still suspicious. I was scared. I was like, ‘This is very uncomfortable and is not where I want to be.’”
Around the same time, Monteilh had also gotten to know the second plaintiff in the case, Yasser AbdelRahim, a technology consultant who also liked to work out; the two would frequently get coffee together, and AbdelRahim invited Monteilh into his home on several occasions.
Monteilh also began to ask AbdelRahim about jihad.
The community quickly became suspicious of Monteilh as rumors spread that he was asking other people similar questions. Malik became concerned.
“I was afraid he was going to be violent. Yeah. And I was afraid he was going to do something bad,” Malik said. “To be honest, I was like, ‘This can’t be, he can’t be working for the FBI, because there’s no way they can be this dumb and this blunt.’ He was so blunt and upfront that I thought he’s a threat to me, himself, the community and the country, and he needs to be reported ASAP and with urgency.”
Malik reported his concerns to the imam. It turned out, he wasn’t the only one.
At the same time, Yassir Fazaga, an imam at the Orange County Islamic Foundation in Mission Viejo, California, began hearing concerns about Monteilh from nearly a dozen congregants.
Fazaga met Monteilh shortly after he converted and even made plans to work out with him. But after hearing Monteilh talk of violence, Fazaga told his congregants to keep their distance.
During one of these phone calls with a concerned worshipper, Fazaga got a call from Monteilh on the other line. Spooked, he immediately got a restraining order to keep Monteilh from visiting the mosque. (Fazaga later learned that the FBI had tapped his phone and was listening.)
The following summer, Hussam Ayloush, the current CEO of the Council on American-Islamic Relations-California and previously the executive director of CAIR’s Los Angeles office, started to receive frantic calls from local Muslims who were also concerned about Monteilh.
Monteilh purportedly wanted to “bomb something” and was trying to recruit support from local Muslims. He claimed he had access to explosive material at home. Ayloush immediately alerted the FBI’s assistant director at the time, Stephen Tidwell ― who also happened to be an agent Ayloush worked with previously ― and gave him Monteilh’s information. AbdelRahim also met with FBI agents and recalled his conversations with Monteilh.
But Monteilh continued to hang out with Muslims and make threatening statements about violence and orchestrating a domestic terror attack in retaliation for the wars in Iraq and Afghanistan.
When the FBI didn’t immediately respond to Ayloush’s concerns about Monteilh, he began to wonder whether Monteilh was working with the federal agents.
Challenging The State Secrets Privilege
Fazaga, Malik and AbdelRahim filed their initial suit with the U.S. District Court for the Southern District of California in 2011, noting that the FBI’s operation “not only undermined the trust between law enforcement and the Southern California Muslim communities, it also violated the Constitution’s fundamental guarantee of neutrality towards all religions.”
The district court dismissed claims that the FBI unlawfully targeted Muslim community members for surveillance based on their religion, accepting the government’s argument that further proceedings could reveal state secrets.
But in 2019, the U.S. Court of Appeals for the 9th Circuit reversed parts of that decision and allowed further proceedings in order to consider the plaintiffs’ religious discrimination claims under the Foreign Intelligence Surveillance Act, or FISA, the 1978 law passed after the Watergate era that sets out procedures for how physical and electronic surveillance can be collected and handled.
“Concerns about privacy, freedom of expression, freedom of association, and unchecked government power were at the heart of what Congress was considering when it passed FISA in 1978,” said the ACLU’s Toomey, who noted the parallels between the spying faced by the plaintiffs and the spying conducted by the executive branch in the 1960s and ’70s against civil rights leaders and anti-war advocates that prompted Congress to enact FISA to begin with.
The Supreme Court will issue a decision in the case some time before the end of its term in late June 2022. The court generally releases the majority of its decisions in mid-June.
“There have been many, many challenges, but often, the FBI has managed to escape accountability without ever having to really take judicial review where a court actually looks at its processes and decide whether or not the FBI broke the law and violated the constitution,” said Ahilan Arulanantham, the faculty co-director of the Center for Immigration Law and Policy at UCLA School of Law, who will be arguing for the plaintiffs on Monday.
The Operation Is Exposed
Shortly after the community reported Monteilh to the FBI, his cover was blown. Monteilh has since conducted dozens of media interviews, at first claiming that he was a patriotic American who had only been trying to help his country fight the war on terror. Later, his stance changed when he had a falling out with the FBI after he was sent to prison on state criminal charges.
After his release in 2008, he began to speak openly about the depths to which he and the bureau went to spy on unsuspecting Muslims. Monteilh even collaborated with the ACLU for the initial 2011 lawsuit.
“It’s like being in a marriage and the whole time your spouse is cheating. It’s akin to that and perhaps even more traumatic because they’re cheating on your entire community.”
The experience hit Malik hard, forcing him to question everything in his life and leaving him paranoid. He wondered whether his non-Muslim friends viewed him the way Monteilh did, and was also concerned that his own community considered him tainted for being so close to Monteilh.
Malik, who once dreamed of working in foreign service, immediately gave up those aspirations. He didn’t know whom to trust anymore.
“It’s like being in a marriage and the whole time your spouse is cheating. It’s akin to that and perhaps even more traumatic because they’re cheating on your entire community,” he said.
Fazaga said he saw similar sentiments among worshippers and even a temporary drop in mosque participation. For many Muslims, the mosque isn’t just a place of worship, but rather a second home where people meet for social gatherings and classes, the imam explained. Suddenly that intimacy was violated, “cementing a belief that some people are second-class citizens,” he said.
“The community was very angry and disappointed. You feel that there was a peace that’s been taken away from us,” Fazaga said.
AbdelRahim shared those feelings, and for a period of time he stopped going to the mosque. After he initially met with the FBI agents about Monteilh, AbdelRahim found that the FBI was targeting him. Agents showed up unannounced to an appointment at the chiropractor and searched his storage unit. Suddenly he went from being a concerned American citizen trying to protect the country to now being targeted and monitored himself.
“I really want people to understand that this impact is real. The effect on people is lifelong. This doesn’t go away. It’s always in the back of your mind,” AbdelRahim said. “You always look behind your shoulders. You’re always worried about the next time it’s going to happen again. You’re always worried now about meeting new people at the mosque. You’re always worried about if you ever truly have any privacy and if I’m continuously being monitored again.”
Fighting For Accountability
In December 2020, the Supreme Court ruled in a similar case, Tanvir v. Tanzin, finding that three Muslim men were entitled to seek damages from federal law enforcement officers who they alleged placed them on the no-fly list in an attempt to coerce them into becoming informants.
The three plaintiffs in the Fazaga case are hopeful that the Supreme Court will rule in their favor, as well.
“This case is potentially very important as a way to set precedent for the protection of the civil rights of Muslim Americans and of other people who are unfairly targeted by the FBI, whether it be for their religion, for their race, or for their political activity,” Arulanantham said.
He hopes the passage of time since the 9/11 attacks and the height of the war on terror will give both the court and the public a chance to look more critically at some of the government policies put in place at the time.
“This is about what happened to the Muslim community specifically after 9/11 and securitization of the Muslim community, where we’re only seen through the prism of ‘We’re terrorists, or suspects of terrorism, or the heroes fighting the terrorists.’ That’s it,” said CAIR’s Ayloush. “Justice means an end to that, and the Islamophobia within our government will finally see the beginning of the end.”
Despite the toll the experience has taken on Malik’s personal life over the last decade, he hopes the court’s decision will bring to a close a traumatic experience for him and his community and remind people what’s at stake.
“All I want is rule of law. I want my day in court,” Malik said. “I’m doing this not for me. I’m doing this for my children. I’m doing this for my grandchildren. I’m doing this for my neighbors and for their grandkids. Because power corrupts. Absolutely power corrupts. I’ve seen it.”