By Heba Mohiuddin
The Supreme Court recently heard oral arguments in the case Federal Bureau of Investigation v. Fazaga, a lawsuit dealing with the FBI’s unwarranted surveillance of the American Muslim community in Irvine, Calif. This case garnered a large amount of media attention because religious freedom is at stake, specifically, the lawfulness (or lack thereof) of the United States’ targeted surveillance of American Muslims.
The oral arguments before the court had less to do with the permissibility of this type of surveillance, though, and instead focused on narrow technical questions of whether the case can be heard or not. Still, it remains an important case to follow for anyone concerned about church-state separation.
The case began with the 2006 counterterrorism operation, Operation Flex, in which the FBI employed Craig Monteilh as an informant. Monteilh pretended to convert to Islam and joined the Islamic Center of Irvine (ICOI), where he collected information about its attendees and other Muslims. The FBI installed surveillance devices at the ICOI and several other mosques, as well as in congregants’ homes, offices and cars. This included the office of the imam, who is a licensed marriage and family therapist. He would often meet with members of the community and discuss incredibly sensitive and personal matters, conversations that were recorded by the federal government.
Monteilh uncovered no evidence of extremism at the mosque. In fact, his attempts to lure members into conversations about “violent Jihad” alarmed local Muslims, who reported him to, ironically, the FBI.
In 2009, many details of the operation were released after three members of ICOI that Monteilh interacted with – Sheikh Yassir Fazaga, Ali Uddi Malik, and Yasser AbdelRahim – sued. They claimed violations under the religious freedom provisions of the First Amendment, the Fourth Amendment, the Equal Protection component of the Due Process Clause, the Federal Tort Claims Act, Section 1810 of Foreign Intelligence Surveillance Act, the Religious Freedom Restoration Act, and the Privacy Act.
In 2012, after the FBI invoked the state-secrets privilege (which authorizes the exclusion of evidence that would, if disclosed, harm national security), a district court dismissed almost all the claims on the basis of national security. This served as a watershed moment, as this motion for dismissal is the basis for the entire argument facing the Supreme Court.
Following a more favorable ruling from the 9th U.S. Circuit Court of Appeals in 2019, the FBI asked the Supreme Court to hear the case. Its legal filing outlines the power struggle between the state-secrets privilege and the FISA in greater detail and therein presents the critical issue threatening the separation of church and state: the right to inquire about government’s possible infringements of a group’s religious freedom is systematically being disassembled by the government’s use of the state-secrets privilege.
This, in turn, harms the ability of American Muslims to live and believe as they choose, and it violates their equality and freedom. There are also no bounds to prevent government’s overreach of this power; therefore, it can very quickly begin to affect every individual and their ability to believe independently.
The most harrowing aspect of this case is that the fate of these issues is contingent on a judgment on the meaning of a few words.
Simply put, the government is using the state-secrets privilege as a means to dismiss the case on the grounds of the alleged jeopardization of national security. This would mean that the audios, videos and extensive other materials obtained during the surveillance of these innocent American Muslims can indefinitely not be viewed, in full or in part, by anyone – other than privileged individuals, chosen by the executive and the FBI. This includes courts and many government officials.
The FBI has declined many offers to exempt the specifically sensitive materials, as well as protested the standard procedure of having the judge review said material privately, repeatedly citing a risk to national security.
This begs the question: What is the FBI hiding? Its increasing desperation to not even secretly disclose to a judge any information regarding a surveillance operation that many perceived as distasteful perpetuates suspicion.
This suspicion is in no way unfounded. There have been a number of missteps (particularly those related to the American Muslim community) that have generated distrust in the government. All of these cases portray a distinct need for checks and balances – a system that has a long history of being effective for the United States. This system requires branches like the executive branch, including the FBI, to be answerable to the judicial system. There are protocols to protect sensitive information, but to discard all procedures and pursuits of liberty on a nebulous excuse negating further investigation would be disparaging to our democracy.
All of these factors, of course, have important implications for the separation of church and state, as the suspected use of the surveilled individuals’ religious identity as a means to violate them is truly immoral and violates established doctrine protecting the free exercise of faith.
The moment in which the government sacrifices politically unpopular minorities to dodge blame for misconduct is the moment our democracy is no longer feasible.
Heba Mohiuddin is a member of Americans United’s Youth Organizing Fellowship. She is studying political science and biology at the University of Texas at Dallas, focusing on the intersection of public health and health policy. She wants to ensure equitable health care, regardless of one’s religious or non-religious beliefs.