The Supreme Court is prepared to hear arguments on Monday over a case related to an FBI informant who feigned conversion to Islam in order to spy on members of a Southern California Islamic community, to which the court will examine whether the agency can hide evidence behind a classified stamp and invoking “state secrets.”
Sheikh Yassir Fazaga, a target of the FBI investigation dating back to June 2006, filed a lawsuit against the agency in 2011 alleging religious discrimination under the First Amendment, the Fifth Amendment, the Religious Freedom Restoration Act of 1993, and the Privacy Act of 1974. During the 14-month investigation, the informant wore a wire to religious services and obtained video and audio from congregants’ homes, and FBI handlers installed electronic devices in at least eight mosques throughout Orange County.
Not long into the informant’s investigation of the Islamic community, plaintiffs in the case allege the agent began inquiring about “violent jihad,” causing people such as Ali Malik, one of the plaintiffs in the case, to look for solutions to curtail the informant’s concerning questions. Malik claims he did not immediately go to the police because he believed the informant was a new convert who could have been talked out of some of his extremist propositions.
“I’ve shed tears over this. … I’ve literally had nightmares over the FBI coming in the house and raiding the home. He had spoken to my mom. She wanted to cook for him,” Malik said during a recorded discussion on Oct. 30.
FBI DOES NOT FIND SAUDI OFFICIALS CONSPIRED TO HELP HIJACKERS CARRY OUT 9/11 ATTACKS
The local Muslim community eventually reported the FBI informant to the agency itself, according to the American Civil Liberties Union.
After the plaintiffs filed their case, the district court maintained in 2012 that it could not consider the claims that the FBI unlawfully targeted Islamic community figures for spying because the agency argued that further proceedings could reveal “state secrets.” The court of appeals subsequently disagreed and told the district court to examine the plaintiff’s claims under the Foreign Intelligence Surveillance Act, procedures required by Congress.
The government appealed the ruling, arguing the “state secrets privilege,” stemming from United States v. Reynolds in 1953, barred the plaintiff’s religious discrimination claims. The Supreme Court later decided to take up the case in June 2021 after the FBI petitioned for certiorari in December 2020.
Patrick Toomey, senior staff attorney with the ACLU’s National Security Project, alleged the FBI’s claims of secrecy should not shield it from the “discriminatory and harmful surveillance that these Muslim American communities experienced.”
“Congress made clear decades ago that people challenging abusive spying should have their day in court. The Supreme Court must honor these protections and allow the plaintiffs’ religious freedom claims to go forward,” Toomey said in September.
Following the 9/11 terrorist attacks, Islamic community groups across the U.S. were subject to suspicion and surveillance by federal agencies.
Now, over a decade after the initial lawsuit filing, plaintiffs in the case want to ensure other people’s First Amendment and Fifth Amendment rights are not jeopardized by agencies operating under the same secrecy privileges exercised in this case.
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Justices will hear arguments in FBI v. Fazaga on Nov. 8, which will be argued by Ahilan Arulanantham, former senior counsel at the ACLU of Southern California.
