The Ninth Circuit Court of Appeals is expected to hear a landmark Orange County case which alleges the FBI violated the First Amendment rights of local Muslims by spying on mosques in the wake of 9/11. 

Back in 2006, Muslims in Orange County became suspicious that the FBI was keeping a close eye on their community.

When J. Stephen Tidwell, the FBI’s assistant director in Los Angeles at the time, spoke at the Islamic Center of Irvine roughly five years after the 9/11 terrorist attacks, he tried to reassure Orange County Muslims that his agency was not spying on local mosques.

“We are well past that,” Tidwell was quoted in a Los Angeles Times article in June 2006. “This is going to be a work in progress to develop trust with each other. It’s something that we have to continually work on to smooth out any bumps that happen along the way.”

Craig Monteilh, a paid FBI informant, publicly converted to Islam one month later – at the same mosque Tidwell made his assurances – as part of a surveillance program that federal agents referred to as Operation Flex.

Monteilh said in a sworn declaration years later that he attended mosques across Southern California posing as a Muslim convert gathering names, contact information and recording conversations for over a year at the behest of the FBI.

But Monteilh was eventually reported to federal investigators by local Muslims in 2007 because they suspected him of being a domestic terrorist after he started asking about “violent jihad” and claimed he had access to weapons. 

In the years that followed, three Orange County Muslims, including religious leader Sheikh Yassir Fazaga, decided to take the FBI to court alleging that the bureau illegally spied on them solely because of their religion.

Lawyers with the American Civil Liberties Union as well as the Council on American Islamic Relations (CAIR) are helping them fight their case.

Today, both sides in the FBI v. Fazaga case are expected to present oral arguments at a 1 p.m. hearing before the Ninth Circuit Court of Appeals in Seattle.

Click here to watch the hearing live stream.

Amr Shabaik, senior civil rights Managing attorney with the Council on American Islamic Relations Los Angeles, said in a Wednesday phone interview that the FBI’s surveillance of Fazaga and members of the Muslim community was unconstitutional.

“We have a constitutional right to practice our religion,” he said. “Even if it was nearly 20 years ago, there has to be some accountability.”

Shabaik said it’s also about setting a precedent.

“There are other communities who also are facing similar scrutiny so that’s something that has to be checked and to be challenged,” he said.

The FBI, however, is asserting the “state’s secret privilege,” arguing that allowing the case to proceed would reveal information that could threaten national security and that the case should be thrown out.

Laura Eimiller, a spokeswoman with the FBI, refused to comment Wednesday on pending legal matters.

“We will let the court speak for itself,” she said.

But Fazaga, and fellow plaintiffs Ali Malik and Yasser AbdelRahim have been pushing over a decade to make sure a similar spying operation doesn’t happen again and to ensure the religious freedoms of Muslims and all Americans granted under the constitution are protected.

Fazaga did not respond to a request for comment Wednesday.

Hussam Ayloush, Executive Director of CAIR- Los Angeles, said in a Wednesday phone interview that Muslims have waited a long time for accountability.

“We’ve been waiting for too long to have justice, in response to how a government agency abused the rights of American citizens based solely on their faith,” he said.

“That is not acceptable, and someone needs to be held accountable for that.”

Lawyers for the plaintiffs argue that the FBI cannot escape accountability for violating the rights of Muslim Americans by invoking the state secrets privilege.

Shabaik said that even if the government asserts the “state secret privilege,” the case shouldn’t be thrown out altogether.

“There has to be an opportunity for our claims to be heard before a court of law,” he said.

Whether the FBI can invoke the privilege has been a matter of debate at various courts – even making its way to the Supreme Court.

Initially, the case was dismissed by the U.S. District Court in Santa Ana who sided with the Bureau.

But the Ninth Circuit Court of Appeals disagreed and said under the Foreign Intelligence Surveillance Act, a federal law, a judge may review the evidence behind closed doors to determine whether the case can proceed.

Last year, Supreme Court justices overturned the Ninth Circuit’s ruling but did not decide if the state secret privilege applies in this case – moving it back to the lower court to make a determination.

[Read: Muslims Continue Battling FBI For Spying on OC Mosques After Supreme Court Ruling]

The year Monteilh started spying on OC mosques, reported hate crimes against people perceived to be Arab, Middle Eastern, or Muslim more than doubled from 4 the previous year to 9, according to a 2006 County Hate Crime Report.

Reported hate incidents against the same group also shot up from 6 in 2005 to 11 in 2006.

Eimiller would not comment on whether Operation Flex ever led to any charges or arrests.

Hosam Elattar is a Voice of OC Reporting Fellow. Contact him or on Twitter @ElattarHosam.


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