[News] 'We don't need secret evidence': California Muslims argue FBI spying case should move forward

[Anti-Imperialist News]

middleeasteye.net
<https://www.middleeasteye.net/news/us-california-muslims-argue-fbi-spying-case-can-continue-without-state-secrets>
'We don't need secret evidence': California Muslims argue FBI spying case
should move forward
By Umar A Farooq - June 9, 2023
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[image: image.png]

After more than a decade of shuttling through the US
<https://www.middleeasteye.net/countries/us> court system, three Muslim men
who fell victim to the FBI's covert surveillance programme are back in
court arguing that their case against the government should continue to
move forward.

During a hearing on Thursday at the US Court of Appeals for the 9th
Circuit, Peter Bibring, the lawyer representing the Muslim men, argued that
the court should hear the case despite the government's arguments the case
should be dismissed based on the state secrets privilege.

"We've taken the position that we don't need any discovery into the secret
evidence," said Bibring, saying that they could present their arguments
with non-privileged evidence.

Judge Marsha Berzon, one of the three judges listening to the arguments,
voiced scepticism of the government's defence around state secrets being a
reason for altogether throwing out the case.

"The underlying problem here is that there is an inherent conflict of
interest by the government. They're both the defender and protector of the
interests and having no eyes on that is very troublesome," Berzon said
during the hearing that was streamed on YouTube.
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"The notion that things are going to leak out that haven't leaked out in
the last 20 years is not very believable."

In response to the government's arguments, Judge Berzon said it is rare for
cases to be dismissed at this stage of litigation.

"That's our problem here. I mean, how much do we hamper both sides because
of this problem or do we just close the courthouse door altogether and say
we're not going to bother?"
Operation Flex

In the early 2000s, the growing Muslim community in southern California was
just getting on its feet both financially and socially following the 9/11
attacks and the vitriol and Islamophobia that Muslims in the US faced in
the years after.

By 2004, the city of Irvine, California, had its own mosque, the Islamic
Centre of Irvine, which was regularly seeing a thousand people attend its
weekly Friday prayer services.

However, in the next few years, the entire social fabric of the community
was ruptured after a paid FBI informant infiltrated and began working to
entrap young Muslim men.

<https://www.middleeasteye.net/news/us-supreme-court-rules-favour-fbi-muslim-spying-case>

US Supreme Court rules in favour of FBI in Muslim spying case

Read More »
<https://www.middleeasteye.net/news/us-supreme-court-rules-favour-fbi-muslim-spying-case>

Between 2006 and 2007, the FBI sent Craig Monteilh, otherwise known to many
in the community as Farouk al-Aziz, to spy on California's Orange County -
home to multiple mosques and 120,000 Muslims at the time. The affair was
known as Operation Flex.

Years later in 2011, Yassir Fazaga, an imam at the Orange County Islamic
Foundation, and Ali Uddin Malik and Yasser Abdelrahim, who both attended
the Islamic Center of Irvine, filed a lawsuit against the government.

The three men accused the FBI of using an informant to infiltrate mosques
in southern California and spy on Muslim Americans, including religious
leaders, on the basis of their religion.

Among the issues the plaintiffs have is that Monteilh had planted recording
devices in the office at the mosque, and had brought up violence and jihad
to young men in the community and asked them to join him in violent plots
on US soil

In one case, Monteilh went with two Muslims in the community on a drive to
a mosque in Culver City, where he asked them to join in an attack on US
soil.

Despite trying to convince him against the act and also telling him that
they would not get involved in any plots, one of the men, Ahmadullah Niazi,
was later arrested on perjury and immigration-related charges.

While the charges were dropped, his entire social circle distanced
themselves from Niazi, members of the community previously
<https://www.middleeasteye.net/news/fbi-surveillance-of-california-mosques-destroyed-fabric-community>
told MEE.

By targeting Muslims, the men say the FBI's alleged actions constitute
religious discrimination in violation of the US Constitution's First
Amendment, as well as violating the Fourth Amendment prohibition on
unreasonable searches and seizures.
State secrets

The plaintiffs argue that they should be given the opportunity to challenge
the unlawful surveillance and targeting of the Muslim-American community.

The government called for the case to be dismissed by asserting the
"state-secrets" privilege, saying that defending the case in court would
threaten the disclosure of information that could pose a threat to national
security.

After the case was dismissed at the district level in 2012, the Ninth
Circuit ruled in 2019 that the case could move forward on the basis of the
Foreign Intelligence Surveillance Act (FISA), which governs how
surveillance-related evidence can be used in court.

The Supreme Court in March 2022 unanimously overturned the appeals court
ruling in favour of the men, determining that the court misapplied the law,
and ordered the lower court to reassess whether the case can move forward
based on the state secret privilege.

Bibring, the lawyer on behalf of the plaintiffs, argued that the state
secrets privilege does not authorise dismissal of this case. The privileged
material in question can be removed without preventing them from presenting
their own non-secret evidence, according to Bibring.

"The government cannot have its cake and eat it too. It can claim that it
still needs to keep secret information about this 17-year-old investigation
of law-abiding Southern California residents, or it can try to defend its
dragnet surveillance practices in federal court," Ahilan Arulanantham,
counsel for plaintiffs and faculty co-director of the Center for
Immigration Law and Policy at UCLA School of Law, said in a statement given
to MEE after the hearing.

"But it cannot hide behind the shield of secrecy and simultaneously avoid
any accountability for its actions."
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