In FBI v. Fazaga, the Supreme Court is taking a closer look at government surveillance
Ali Uddin Malik welcomed Craig Monteilh into his congregation with open arms in 2006. As a Muslim, he felt a sacred duty to help the man, who claimed to be a recent convert, understand their shared faith.
Over the course of several months, the pair met often to pray and talk. There was just one problem: Monteilh was obsessed with jihad.
“During one of our meetings … he (asked) me explicitly if vigilante violence was sanctioned within the religion and I said absolutely not. He continued to probe and asked if the imam … was an advocate of violence or if I know of any other (Muslims) in Southern California that supported violence and I said no,” Malik said during a recent press call.
Monteilh dropped the subject that day but picked it up again later. He urged Malik to say more about jihad and when violence is OK.
“I told him that our faith does not sanction violence and that he needed to focus on prayer and faith,” Malik said.
Malik was so shaken by Monteilh’s urgency that he asked his imam and others for help. They, too, were alarmed and urged Malik to avoid the man “at all costs.”
After hearing similar reports from other members, community leaders grew so concerned about Monteilh that they called the FBI. They didn’t realize the FBI had sent him.
The state secrets defense
Around 2.5 years after Monteilh first entered the Islamic Center of Irvine, the Muslim community in Southern California began to see the troubling episode in a very new light.
Monteilh, fresh off a prison stay for an unrelated charge, exposed his previously confidential FBI connection. For Malik, it felt like a slap in the face.
“I felt betrayed by the very institutions that were supposed to protect and honor the Constitution of the United States,” he said during the Oct. 27 press call, which was co-sponsored by the ACLU, the Los Angeles branch of the Council on American-Islamic Relations and the Center for Immigration Law and Policy at UCLA.
Along with two other men, Malik filed a lawsuit in 2011 against the FBI and some individual agents. They alleged that they’d been unlawfully targeted for surveillance solely because of their faith.
Ten years later, the lawsuit is still ongoing and no judge has actually ever dug into their religious freedom claims. Instead, court proceedings have focused on something called “state secrets privilege,” which the government can invoke when a case raises national security concerns.
According to court filings from government officials, the FBI and its agents are unable to defend their actions in Southern California without putting the country at risk. For this reason, they asked that the case be dismissed.
In 2012, a district court sided with the government, halting the case. But then, the 9th Circuit Court of Appeals reversed the decision, ruling that a law called the Foreign Intelligence Surveillance Act created a path on which the suit could move forward.
This summer, the Supreme Court agreed to hear the case and clarify the limits of the state secrets defense. Oral arguments are scheduled for this Monday, Nov. 8.
The government maintains that allowing the case to proceed would put the country in danger. The 9th Circuit misinterpreted and misapplied the Foreign Intelligence Surveillance Act, officials say.
“The court of appeals’ decision has the startling consequence of transforming a limited provision of FISA that was designed to safeguard national-security information into a mechanism for overriding the executive’s invocation of the state-secrets privilege,” argued the government’s appeal to the Supreme Court.
Malik and the other plaintiffs, on the other hand, say the 9th Circuit ruling should stand. The whole country suffers when people who are wrongly surveilled by the government cannot seek legal relief, argued Ahilan Arulanatham, faculty co-director of UCLA’s Law Center for Immigration Law and Policy, during the Oct. 27 press call.
“The question, ultimately, for the court is really very simple: Will the people we represent ever get their day in court?” he said.
Oral arguments, as well as the Supreme Court’s eventual ruling, likely won’t dwell on the religious aspects of the case. Most of the discussion will be about state secrets privilege and surveillance laws, said Arulanatham, who will argue on behalf of the Muslim men to the court.
However, he still sees the case as a chance to raise awareness. Few Americans understand the pain of being viewed with suspicion because of your faith, Arulanatham said.
“Even to this day, agents are still asking to meet with the leaders of mosques in order to obviously spy on them, visiting people in their homes for ‘voluntary’ interviews and taking various other actions, all of which combined send a very clear message to this community: ‘We don’t trust you. You aren’t like us,’” he said.
This negative attention complicates Muslims’ relationship to their faith community, Malik said, noting that Monteilh’s actions made him seek distance from his friends.
“I stopped attending the Islamic Center for fear of seeing Craig. I changed the way I looked to appear less ‘Muslim,’” he said.
The case will also raise awareness of the rules governing national security operations. Government officials hope it’ll become clear that state secrets privilege is never “lightly invoked.”
“(Legal) procedures serve to ensure that the privilege is invoked only when — and to the extent — necessary to safeguard the national security,” wrote government attorneys in one of their briefs.
The Supreme Court’s decision is expected by the end of June.