Obama's Unprecedented Use of State Secrets to Defend Religious Profiling

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Obama's Unprecedented Use of State Secrets to Defend Religious Profiling

In the summer of 2006, a French Syrian man known as Farouk al-Aziz publicly converted to Islam in front of a Friday prayer congregation at a large mosque in Irvine, Calif. Mosque leadership and attendants were quick to embrace al-Aziz as a new member of their faith. The Islamic center's imam asked a congregant to teach al-Aziz how to pray, and he quickly became a regular attendee at the mosque in Irvine and others in Orange County.

In the summer of 2006, a French Syrian man known as Farouk al-Aziz publicly converted to Islam in front of a Friday prayer congregation at a large mosque in Irvine, Calif. Mosque leadership and attendants were quick to embrace al-Aziz as a new member of their faith. The Islamic center's imam asked a congregant to teach al-Aziz how to pray, and he quickly became a regular attendee at the mosque in Irvine and others in Orange County.

However, community members soon became wary of al-Aziz. He would often sit in on groups, listening to other Muslim congregants' conversations within the mosque, at family picnics or at a local gym. Most troubling to other attendees was his frequent, unusual questions about a violent form of jihad. Community members say when al-Aziz began implying that he was contemplating violent action, boasting he knew where to get weapons and trying to gather people in a plot, congregants quickly brought the issue to the attention of mosque leadership. They obtained a restraining order against him and reached out to the local chapter of the Council on American-Islamic Relations, which helped them report al-Aziz's actions to the FBI.

As it turned out, the FBI was already well aware of al-Aziz's activities at the mosque--they had in fact sent him there. He was one of thousands of informants the FBI has used since 9/11 to spy upon Muslim American communities and concoct terrorism plots inside them. The practice has drawn attention from news media and civil liberties advocates in recent years, and Muslim American community leaders are organizing to demand its end. But one huge, unexpected hurdle now stands in the way: The Obama administration's invocation of a national security provision that makes it impossible for communities and individuals to protect their rights through lawsuits.

The provision, known as the state secrets privilege, permits the government to block discovery in a lawsuit of any information that, if disclosed, could adversely affect national security or foreign relations. President Obama vowed while campaigning that he'd end its use. Instead, his administration has not only continued invoking it, but has done so in a previously unprecedented way in order to protect legally questionable surveillance of Muslim American communities.

President Obama's Privileged Secrets

Al-Aziz's name was actually Craig Monteilh, and he was a paid informant working for the FBI. Monteilh, who was profiled in a Mother Jones investigation into the FBI's spying program this month, had worked with the bureau for several years. He fell out with the FBI after he was convicted of grand theft in 2007 and his role as an informant was revealed in court documents. Monteilh filed suit against the FBI and went public about his activities as an informant--including that he was instructed to infiltrate southern Californian mosques and spy on worshippers.

Earlier this year, Muslim community advocates responded with a lawsuit of their own. In Fazaga v. FBI, the American Civil Liberties Union of Southern California and the Los Angeles chapter of CAIR allege that by indiscriminately surveilling several southern Californian mosques and collecting information on hundreds, perhaps thousands, of law-abiding American Muslims, the FBI violated their constitutional rights. In addition to Monteilh's reports of the instructions he received from the FBI, attorneys on the case say that the numerous accounts of Muslim community members who came in contact with Monteilh, as well as some FBI guidelines themselves, all strongly indicate that the FBI's targeting of mosques was based on religion alone, rather than on following leads or indications of unlawful activity.

Last month, the Obama administration invoked the state secrets privilege in an effort to have the suit dismissed. In the filing, Attorney General Eric Holder said that the Justice Department cannot allow the case to be litigated, because it would lead to the disclosure of sensitive information, which could in turn "reasonably be expected to cause harm to national security."

The Bush administration infamously expanded the use of the state secrets doctrine, frequently invoking it to have entire lawsuits dismissed, rather than employing it to have individual pieces of evidence excluded from court, as it had been used in the past. As a candidate, President Obama criticized his predecessor's repeated use of the privilege "to get cases thrown out of civil court." Since taking office, however, Obama's Justice Department has done the exact same thing.

The Obama administration has continued to assert the state secrets privilege in lawsuits still pending from the Bush years, on cases involving warrantless wiretapping, detention, torture and rendition of terrorism suspects at CIA black sites. And the administration has been successful in getting lawsuits dismissed on those grounds. The Obama Justice Department has also asserted the privilege in a lawsuit over the government's right to target and kill suspected terrorists, including U.S. citizens, outside a war zone and absent an imminent threat to national security.

Both administrations' use of the privilege to cover up questionable government behavior is not unprecedented. Indeed, in the landmark 1953 Supreme Court case United States v. Reynolds, the government invoked the state secrets privilege to circumvent the disclosure of an accident report in a wrongful death action involving the military. The court bought the government's argument, but when the document was declassified in 2004, it was found to contain no sensitive information about national security whatsoever. Rather, it contained information proving government negligence.

The Obama administration's invocation of the state secrets privilege, however, is unprecedented, transparency advocates assert. In previous and ongoing suits where the doctrine has been invoked, plaintiffs were seeking damages for a past violation of rights; the constitutional violations described in the Fazaga v. FBI are ongoing.

"The biggest difference is that here we have an ongoing constitutional violation against American citizens on American soil, and if courts can dismiss challenges to such ongoing violations on the grounds that...the program is secret, then that's fundamentally inconsistent with very basic structural protections we have in our democratic function of government," said Ahilan Arulanantham, deputy legal director of ACLU in southern California and a lead attorney on the case. "Our system virtually never allows the courthouse doors to be closed to an ongoing violation of the Constitution."

Arulanantham also argues the government's claim that sensitive national security information is at risk doesn't hold up, given how widely reported Monteilh's informant activities in "Operation Flex" have been. "There is nothing secret about the fact that the FBI was employing Craig Monteilh and that he surveiled hundreds or thousands of Muslims and gathered information on them."

Since the lawsuit was filed, further evidence has emerged of similarly indiscriminate surveillance practices. When the northern California chapter of the ACLU and the Asian Law Caucus filed a Freedom of Information Act request about government surveillance of American Muslim communities, they obtained a PowerPoint presentation used by the FBI to train new recruits. The presentation included estimates of the number of mosques in America, and listed states with the largest Muslim populations. It also presented a troubling and simplistic depiction of Muslims and Arabs, and highlighted the work of career Islamophobe Robert Spencer in its recommended reading list.

NYPD Conducting Similar Surveillance

The FBI's not the only agency snooping on Muslim Americans, though. Late last month, the Associated Press published an investigation on the New York Police Department's covert surveillance of Muslims communities. The article, based on interviews with over 40 current and former NYPD and federal officials, detailed the aggressive practices of the agency's domestic intelligence gathering operation. According to the AP's findings, the NYPD, with much help from the CIA, used undercover officers to map and monitor Muslim-populated immigrant and black Muslim neighborhoods in and beyond the city, and dispatched informants to monitor sermons delivered at mosques and Muslim student groups, without any prior indication of unlawful behavior. The revelations came as little surprise to Muslim civil liberties groups, as such activities by the NYPD have long been widely reported by community members and documented by advocates, as well as by official testimony.

"There was already a picture being painted of the way this program was playing out in local communities. What we didn't know and was the most troubling about the report was how deep and how normalized this program has become," said Cyrus McGoldrick, civil rights manager at the New York chapter of CAIR.

Earlier this year, the Village Voice found that the NYPD had also screened the anti-Islamic hate film "The Third Jihad"--which describes Islam as a threat to the U.S. and was made by the Clarion Fund--at a mandatory counter-terrorism course for officers.

McGoldrick said civil liberties advocates are demanding a federal investigation of the CIA's involvement as well as investigations by local officials. The NYPD maintains that the CIA's role in the surveillance is merely advisory.

Community organizations are also trying to equip Muslim Americans with resources to protect themselves from the police department's profiling. The group Desis Rising Up & Moving (DRUM), which works with low-income South Asian and Muslim immigrants in New York City, is planning a citywide survey to collect information on law enforcement interactions with the Muslim community.

Meanwhile, advocates warn that the all of this surveillance has created a sense of mistrust within communities. "People don't speak freely anymore, people don't feel comfortable engaging in candid conversations," said Ameena Mirza Qazi, deputy executive director of CAIR's L.A. chapter and an attorney for the plaintiff in the Fazaga lawsuit.

"The mosque is a building, but it's about the community," Qazi said. "To have the government come and disrupt that, that's a very clear violation of our First Amendment freedom to practice our religion as we wish."

A Wrong Headed Approach?

Aside from being predatory and potentially illegal, unwarranted surveillance is self-defeating, Muslim leaders say.

"This isn't a program that makes us safer. This is a program that is investigating communities and not crimes," McGoldrick said about the NYPD's infiltration of Muslim communities via informants. "Instead of stopping crimes, they're manufacturing crimes and they're creating the images of crimes, and really just alienating an entire community that's been nothing but supportive and has been at the lead of policing our own communities since 9/11 and before."

Qazi had similar sentiments about how these revelations affect Muslim communities' relationship with law enforcement. "If you're treating us as suspects, how can we trust that you'll treat us as partners?" she said, also pointing out that Muslims in southern California immediately alerted authorities when Monteilh began speaking about violent activity. "His role as an agent provocateur didn't last very long because he was cut short by Muslim community members themselves."

Yet, techniques like unwarranted surveillance, highly paid informants and questionable sting operations draw huge amounts of funding for the FBI and NYPD. According to Mother Jones, the FBI's counter-terrorism budget stands at $3.3 billion, and as a whole, the agency spends more on hunting potential threats to national security than on chasing "ordinary criminals," the New York Times recently found. The AP reports that the NYPD has received more than $1.6 billion from the federal government since 9/11, with little oversight from external authorities.

In counterterrorism, law enforcement relies heavily on informants, some recruited from Muslim communities under the pressure of threatened immigration troubles or past criminal infractions, as the targets of informants account for roughly half of defendants in domestic terror prosecutions to date, Mother Jones' investigation found. Some advocates question whether the agencies are more interested in using funds to produce terrorism arrests and convictions than on addressing an existing national security threat.

"There is incredible pressure on law enforcement to prevent attacks...if you are able to lead somebody into a plot, you then have a success. You have made a counter terrorism case, you made an arrest, and you will most likely get a conviction, and all of that plays into how funds are allocated and how different agencies are perceived," said Faiza Patel, the co-director of the Liberty and National Security Program at the Brennan Center for Justice.

Patel has written widely on the theory of "radicalization" embraced by different law enforcement agencies (and some politicians), a main aspect of which includes an understanding that certain interpretations or expressions of Islam consistently lead to acts of violence. Such thinking is espoused in a 2007 report the NYPD published on homegrown terrorism, which listed signs of "radicalization" such as regular attendance at mosques, giving up cigarettes, drinking gambling, and the wearing of "urban hip-hop gangster clothes," or wearing Islamic clothing, growing a beard and even becoming involved in social activism.

"If you think there's this religious conveyer belt leading to terrorism, then you think it's useful to see what people are saying and doing in their practice of religion, and that leads you into surveillance of mosques and bookstores and community centers," Patel said.

The NYPD report might point to a more fundamental problem underlying law enforcement's treatment of Muslim communities: The view of basic practices of the Islamic faith, including congregation, as indications of potential danger undermines the standing of American Muslims as a group deserving the same social protections as everybody else.

"Look, we've had a consensus I think in this country that racial profiling is wrong," Patel said. "What we don't somehow seem to have a consensus about is whether or not that rule applies to national security cases, and whether or not that rule applies to things such as religion or ethnicity."

Asraa Mustufa is a regular contributor to Colorlines.com and a research intern at the Applied Research Center, which publishes Colorlines.

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