The U.S. Supreme Court hears arguments Monday in a case involving an FBI undercover operation at a mosque in California. Area Muslims are suing the FBI over a nearly year-long surveillance program that, at least publicly, yielded no results and proved a huge embarrassment to the bureau.
How it began
In hindsight, the covert operation unfolded like some sort of black comedy. As Ira Glass reported on This American Life back in 2012, "It is a cautionary tale, a case where we can watch everything go wrong."
It all started in 2006, in Orange Country, Calif. A home-grown terrorist on the FBI's most-wanted list had come out of a mosque there, and relations between the faithful and the FBI had become so fraught that the head of the Los Angeles FBI office, Stephen Tidwell, decided he should do a town hall at one of the Orange County mosques.
He picked the Islamic Center of Irvine, and repeatedly sought at the meeting to assure the audience that the FBI was not monitoring them. If the bureau is going to come to the mosque, he told them, "We will tell you we're coming for the very reason we don't want you to think you're being monitored."
But even as he was saying that, the FBI was recruiting an undercover informant to infiltrate the mosque and catch anyone who might be recruiting and training terrorists. The informant was named Craig Monteilh, a trainer at a local gym who had a checkered past. He posed as a Muslim convert at the Irvine mosque, one of the largest in southern California.
As Sam Black reported for This American Life, "The FBI later confirmed in court that Craig was an undercover informant. A district attorney also stated in court that Craig did work with Agent Kevin Armstrong and that Craig had given the FBI 'very very valuable information.'"
The bureau also has confirmed that Monteilh secretly recorded tons of audio and video of the people he was making friends with at the mosque.
'You're doing the right thing'
Soon he started pummeling his new friends with questions about jihad, Black reported, to the point that some people from the mosque started to hear complaints about it.
Monteilh would subsequently confirm that he eventually did much more than ask questions about jihad.
"I said we should carry out a terrorist attack in this country," he told This American Life. "We should bomb something."
Monteilh said that to two of the men he'd been hanging out with, and they freaked out. They wanted to report what they had heard, but they didn't know how to go about it. So they contacted Hassam Ayloush, director of the Council on American Islamic Relations in Southern California.
"I told them, 'Calm down...you're doing the right thing. You're calling authorities. So even if the guy is planning on anything, you have nothing to worry about. You're not accomplice,'" Ayloush recalled.
Now, Ayloush was the person who had arranged that earlier town hall with Los Angeles FBI chief Tidwell, so he called Tidwell to report Monteilh's threats. But oddly, Tidwell, after thanking him for the tip, didn't even ask for the alleged terrorist's name.
In recounting all this on This American Life, reporter Black said, "Tidwell wouldn't speak to me for this story, so I don't know what he thought when his own informant was reported to him as a terrorist. But not long after this phone call, the FBI launched an investigation into Craig [Monteilh], which no matter how you look at it was a very strange undertaking. FBI agents going around asking questions about an FBI informant, treating him as an actual suspect they were investigating."
The Muslim community came to believe that this was just another ploy, a way to leverage people and get them to inform on each other.
Eventually three of the people who were spied upon sued the FBI. The lead plaintiff is Sheikh Yassir Fazaga who in 2006 was the imam at the Orange County Islamic Foundation.
A recording device hidden in a therapist's office
"We believe that we were targeted not because of anything other than our religious beliefs," he said in an interview with NPR last week. "Craig Monteilh said he was sent to surveil the Muslim community." He recorded conversations, discussions at the mosque; he recorded the license plate numbers and took photos of people who were coming to the mosque, said Fazaga. And he was "literally instigating, enticing" people, trying to get them "to become terrorists."
Fazaga, who is a therapist, is also incensed that he found in his office a remote control that he says turned out to be a recording device left there by Monteilh, a device that for a month recorded the personal and confidential sessions he had with his patients.
Monteilh testified that his FBI handlers considered Fazaga to be a radical because he "directed students on how to conduct demonstrations and encouraged them to speak out."
Fazaga considers what the FBI did a breach of trust that cannot be repaired. Ultimately, he wants the FBI to destroy all the information that was gathered, especially recordings of counseling sessions.
"You couldn't go into a Catholic church in the confession room and put bugs there because that would just be a violation of these people's rights and their religious freedom," he said. "That applies to people in therapy as well. It applies to people in a mosque, a synagogue, a church, any place of worship."
There may be a justification for some of the government's actions in this case. But if so, that information has not been made public, and we will not hear about it in the Supreme Court on Monday. The argument instead will focus basically on whether this case can move forward at all because the government argues that for it to produce any of the evidence gathered 15 years ago would jeopardize national security.
The Muslim plaintiffs contend that under the Foreign Intelligence Surveillance Act, known as FISA, a judge can review the material and, where appropriate, order that it be disclosed. And they claim that in a case like this, FISA, enacted in 1978, displaces the "state secrets privilege," a doctrine created by the Supreme Court in the 1950s.
But the government counters that FISA was not meant for cases like this and that the courts must dismiss the case if the government certifies that disclosure would threaten national security. Here the government has made that certification, contending that this case cannot be litigated "without risking disclosure of state secrets--namely, whom (if anyone) the government was investigating and why."
In its brief to the court, the Justice Department contends that it "does not lightly" invoke the state secrets privilege and that the Attorney General has personally approved the assertion. When the privilege is "properly invoked," the government argues, "a court is neither authorized nor qualified to inquire further into privileged matters."
Sheikh Fazaga is not buying that argument, especially not after 15 years.
"They're saying that we did what we did because we could not tell you why," he says. "There is no one to see the merits of what you are doing. And national security just becomes this blanket that you can cover anything you want with it."
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