US citizens v FBI: Will the government face charges for illegal surveillance?

On Monday, the US supreme court will hear arguments in a case which could determine whether the US government faces accountability for its mass surveillance of Muslim Americans after 9/11.

The nine justices will be asked to decide on whether Muslim US citizens who were subjected to undercover surveillance by a paid informant at their southern California mosque can receive redress through the courts.

Sheikh Yassir Fazaga, Ali Malik and Yasser Abdel Rahim, the three plaintiffs, argue that they and thousands of other Muslims were targeted because of their religion, and the federal authorities who subjected them to such unconstitutional treatment should answer for that.

Lawyers for the government will counter that the case should be dismissed, as litigating it would reveal intelligence about federal anti-terrorism operations that would be harmful to national security. Information on who they were investigating and why, as well as details of the FBI’s sources and methods, should remain confidential on grounds that they are “state secrets”.

Ahilan Arulanantham, a human rights lawyer at UCLA who will be arguing FBI v Fazaga for the plaintiffs on Monday, told reporters that the question for the court was simple: “Will the people we represent ever get their day in court? Are the courts open to protect this community’s religious freedoms, or can the government slam the doors shut whenever it claims to be acting in the name of national security?”

At the heart of the case is Craig Monteilh, a fitness instructor convicted for fraud, who was taken on by the FBI as an informant five years after 9/11 in “Operation Flex” in which he surveilled mosques in Irvine, California.

Ali Malik, one of the three plaintiffs in the Fazaga case, vividly remembers when Monteilh first visited the Islamic Center of Irvine in July 2006. The informant presented himself as a person of French and Syrian descent wanting to convert to Islam.

“He was not someone you’d forget,” Malik told the Guardian. “Physically, he’s very dominant– a big guy, a body builder. He’s massive, shaved head, tattoos – so he didn’t look like the majority of constituents at the center.”

Malik, a US citizen from birth, was 22 and a student when Monteilh appeared. Malik said that he and his fellow worshippers were excited to welcome into their community the new convert, who took on the name Farouk al-Aziz.

“We had never experienced an undercover provocateur,” Malik said. “We had no reason to believe that the FBI was involved in that activity. In fact, the FBI had come to our mosque, looked into our eyes, and assured us that they were not spying on us.”

Malik became Monteilh’s mentor, teaching him how to pray. For more than a year, they met regularly, sharing personal details of their lives and working out at the gym together.

Malik recalls becoming uneasy about Monteilh when he began asking questions about violent jihad, becoming increasingly incessant on the subject.

“He would say, ‘What about jihad? What about this?’ I had only one response: ‘Vigilante violence is not okay in Islam. You need to focus on how to pray and how to establish a connection with God.’”

Malik picked up the same concerns from others in the mosque – Monteilh was inciting violence among them. “He was so assertive, and he spoke with such urgency that he was really intimidating.”

The last conversation they had was so disturbing that Malik went to the imam of the mosque and told him Monteilh was potentially violent and a danger to the community. Eventually, a restraining order was taken out preventing Monteilh from visiting the mosque.

Ironically, the mosque also informed the FBI about their concerns. The FBI said it would deal with the situation.

In 2009 it became public that Monteilh was working for the FBI and had been trying to entrap law-abiding American Muslims with his talk of violent jihad. It emerged that he had gathered hundreds of phone numbers, thousands of email addresses, and hours of video and audio recordings inside mosques, homes and businesses associated with Muslims.

Monteilh later admitted his role, telling the Guardian in 2012 that his FBI handlers had authorized him to have sex with Muslim women and record their pillow talk. “They said, if it would enhance the intelligence, to go ahead and have sex. So I did,” he said.

That same year, Monteilh told NPR that he told two congregants: “we should bomb something”.

Malik joined his co-plaintiffs, Sheikh Yassir Fazaga and Yasser Abdel Rahim, in filing a lawsuit against the FBI. In 2011, with the help of the American Civil Liberties Union of Southern California and the Council on American-Islamic Relations of Greater Los Angeles, they filed a federal class-action lawsuit accusing the government of surveilling Muslim Americans in violation of their constitutional rights.

The invocation of “state secrets” in the Fazaga case was the first time in recent American history that the privilege was invoked to dismiss a lawsuit brought by an American citizen concerning domestic law enforcement.

Monday’s hearing is the second time the supreme court will consider the application of “state secrets” this term. Last month, the justices considered whether the Guantánamo detainee Abu Zubaydah should be able to question two former CIA contractors about the brutal torture he was subjected to at a “black site” in Poland.

In the Fazaga case, the nation’s highest court will adjudicate on whether the lawsuit against FBI’s surveillance can proceed under the Foreign Intelligence Surveillance Act. This would allow the case to be heard in a federal district court with part of the proceedings conducted in private to safeguard sensitive intelligence.

Malik and his fellow plaintiffs will be in Washington on Monday to listen to the arguments, although they will not be allowed into the courtroom under Covid restrictions. He told the Guardian that the hearing was “probably the most important thing, other than getting married and having children, in my entire life”.

He said the lawsuit boiled down to a simple premise: “Can I practice my religion without having to feel I’m doing anything wrong?”

As for the government’s claim of “state secrets”, Malik said: “It’s terrifying to know that the government can conduct illegal activity against me and that I, as a citizen, can’t hold them to account. All I’m asking for is the establishment of the rule of law – for the constitution of the United States to be upheld.”

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