U.S. Supreme Court Justices will hear oral arguments Monday in a potentially landmark case stemming from Orange County mosques, that could determine if the government spying on a mosque is protected by secrecy and isn’t a violation of religious freedom.
Three Muslims are off to Washington D.C. to challenge the Federal Bureau of Investigations for spying on several OC mosques and the Muslim community in an effort to hold the bureau accountable for what they say is a violation of their constitutional rights in the FBI v. Fazaga case.
The FBI argues the state secret privilege should prevent further proceedings because the case could reveal classified information and pose a threat to national security.
“For the past 15 years, I have never assumed any of my phone conversations, emails, or even sometimes just personal conversations wherever private,” said Sheikh Yassir Fazaga, a plaintiff, in a Zoom news briefing last week.
“I literally programmed myself that somebody is listening to this and I’m not sure if they’re going to be guilty of selective hearing or not.”
The local Muslim community ended up reporting the FBI’s own informant to the bureau after the informant began asking people about “violent jihad.”
Now the case is before the Supreme Court — where justices are expected to weigh in on when the “state secrets” privilege can be invoked and if the case can proceed.
Lourdes Arocho, a member of the FBI’s press office, said in an email to the Voice of OC on Wednesday that the Bureau does not comment on pending civil litigation as a matter of policy.
Patrick Toomey, a senior staff attorney with the ACLU, said a Supreme Court ruling could have major consequences for privacy and the First Amendment’s freedom of religion.
“Even more broadly, this case has significant implications for cases where the executive branch asserts state secrets privilege in an effort to foreclose accountability for other types of illegal government conduct, especially in the two decades since 9/11,” he said at the briefing.
It’s been ten years since Fazaga and other Muslims first filed their lawsuit.
[Read the Supreme Court Complaint Here]
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Hussam Ayloush, the Executive Director of the Council on American Islamic Relations for the Greater Los Angeles area, spoke at last week’s briefing about the importance of the case.
“As we prepare to be heard in our country’s highest court, we are hoping to shed light on how a government and federal agency that is charged with protecting us all continues its attempt to treat Muslims as second class citizens,” he said.
Ayloush said the case is about accountability, the unlawful targeting of Americans based on their religion and a culture of Islamophobia that has put a target on the backs of Muslims since 9/11.
“Like many others in this country, Americans who are Muslim, have been systematically targeted and treated as second class citizens for far too long. Muslims deserve to feel comfortable practicing their religion with friends and in the safety of their mosques. It is time for this Islamophobia to end. It is time for accountability. It is time for justice.”
Hussam Ayloush, the Executive Director of the Council on American Islamic Relations for the Greater Los Angeles area, spoke at last week’s briefing about the importance of the case.
The impact of the case will be far reaching, Ayloush said.
“The outcome of this case will impact every American, not just Muslims. Can you be spied on by the government simply because of how you choose to worship?” he said.
[Read: FBI Allegedly Spied on Mosques Illegally in Orange County, Now Supreme Court Will Hear Case]
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In June 2006, roughly five years after 9/11, then Los Angeles FBI Assistant Director Stephen Tidwell attended a forum for the Muslim community at the Islamic Center of Irvine, where he assured residents that the bureau would not send covert informants to mosques to monitor their community.
The forum was held after the Orange County Register published a story quoting an FBI agent who said the bureau was aware of a large number of Muslims at UC Irvine and implied the FBI was monitoring Muslims in the county.
Many residents at the event, including Fazaga, however, did not trust Tidwell’s assurances.
“I was one of the people that challenged the FBI that day,” Fazaga said. “Stephen Tidwell spoke too much and said very little and no matter what questions were directed to him, he just never answered our questions, nor did he address the concerns that people had.”
Ayloush said the forum took place around the same time FBI agents decided to pay and send Craig Monteilh, an informant, to mosques in Orange County posing as a Muslim convert — where he gathered names, contact information and recorded conversations for over a year.
During that time, Monteilh frequented several mosques in Orange County, including the Islamic Center of Irvine and the Orange County Islamic Foundation, where Fazaga was the Religious Director.
Other mosques Monteilh frequented include The Islamic Society of Orange County in Garden Grove, Darul Falah Islamic Center in Tustin, and the Omar AlFarouk mosque in Anaheim, according to the complaint.
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Ali Malek, an OC resident and plaintiff in the case, said at last week’s briefing, the Imaan at the Islamic Center of Irvine asked him to mentor Monteilh after he publically converted to Islam and teach him how to pray.
Malek and other Muslims became wary of Monteilh after a while when he began asking about “violent jihad.”
According to the complaint, in May 2007, Monteilh apparently told a number of people that he had access to weapons and felt a duty to take violent actions after expressing frustrations over the oppression of Muslims globally.
The OC Muslim community eventually reported Montelih — the FBI informant — to the bureau for potentially being a domestic terrorist threat.
“I was deeply scared for myself and the community,” Malek said.
The Islamic Center of Irvine also filed a restraining order against Monteilh to bar him from the mosque, which the California Supreme Court granted in June 2007.
According to the complaint, Monteilh attended other mosques for about two months after the restraining order before he “disappeared from the Muslim community.”
“It was soon revealed that Craig was working for the FBI. When I found out that my government had spied on me because of my faith, I felt betrayed,” Malek said.
“I felt betrayed by the very institutions that were supposed to protect and honor the Constitution of the United States. I stopped attending the Islamic Center for fear of seeing Craig, I changed the way I look to appear less Muslim.”
Ali Malek, an OC resident and plaintiff in the case
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Ahilan Arulanantham, faculty co-director of the Center for Immigration Law and Policy at UCLA, will be arguing the case before the supreme court and said much of the case will likely tackle when state secret privileges can be invoked.
“Most of the discussion will be about [whether] they even have to defend themselves. Does a court ever get to decide and look and see whether they violated the Constitution?” he said.
Arulanantham said the FBI has a history of targeting Muslims and there is substantial evidence supporting that claim.
“There’s now overwhelming evidence from human rights organizations or leaks by concerned government employees and from the lived experience of people in Muslim American communities throughout the country that the FBI has systematically violated the constitutional protections for religious freedom for far too long,” he said.
Arulanantham said the question before the Supreme Court justices is simple:
“Are the courts open to protect this community’s religious freedom? Or can the government slam the door shut whenever it claims to be acting in the name of national security?”
Ahilan Arulanantham, faculty co-director of the Center for Immigration Law and Policy at UCLA
The implications, however, are profound, Arulanantham said.
“This case offers us all an opportunity to reflect on the errors of the past two decades and to chart a different path forward — one grounded in the dignity of all people and in fidelity to the Constitution’s principles forbidding discrimination and protecting religious freedom.”
Hosam Elattar is a Voice of OC Reporting Fellow. Contact him @helattar@voiceofoc.org or on Twitter @ElattarHosam.