Posted by on August 20, 2012 in Blog

A federal judge in Orange County last week dismissed a lawsuit filed against the FBI over the agency’s extensive spying on American Muslims in the area. The FBI’s activities were brought to light by one of the FBI’s informants, Craig Monteilh, who went public with the story. Monteilh claims that he posed as a Muslim convert at the behest of the FBI to collect information at Orange County mosques as a part of “Operation Flex.” He alleges that he was given sophisticated audio and video surveillance which he used to gather information at 10 mosques in southern California. In his declaration, Monteilh wrote that he was not given specific targets by the FBI but rather tasked with "immersing myself in the Muslim community and gathering as much information on as many people and institutions as possible." He made audio recordings of every interaction, gathered names, telephone numbers, e-mails, political and religious views, travel plans, and other information on hundreds of individuals in the Muslim community. According to Monteilh’s statement, he was told to pay special attention to community leaders and those who seemed especially devout. Monteilh’s role as an informant ended when he began speaking about committing acts of violence with members of the community he was surveilling, at which point they reported him to the authorities. Monteilh’s testimony prompted the ALCU and CAIR to sue to FBI for their dragnet investigation that indiscriminately targeted an entire community based on their religion and recorded private and religious conversations with no suspicion of wrongdoing.

The federal government asserted the “State Secrets” privilege and U.S. District Judge Cormac J. Carney reviewed evidence from the FBI behind closed doors. Judge Carney ultimately sided with the federal government that continuing the case would reveal state secrets that could compromise national security. In one of the most disturbing court opinions authored in recent memory, Judge Carney explained his decision by comparing himself to Odysseus in the story of Scylla and Charybdis. Carney recalled how in the legend, Odysseus chooses to lose several of his men to the six-headed monster rather than lose his entire ship to the whirlpool. In Carney’s version of the epic, as he writes it in his court opinion, the constitutional rights of American Muslims are fed to the six-headed monster.

It is a disturbing trend that the federal government possesses near limitless power to end litigation with the mere assertion that they were acting in secret in the interest of national security. It is especially troubling when cases involving the basic constitutional rights of American citizens have been violated. The state secrets privilege also has a well-documented history of abuse, as it is more often than not used to shield government agencies from embarrassment or revelations of gross misconduct. This is most likely the case with “Operation Flex.” The activities described by Monteilh are not only illegal, but represent a completely ineffective counterterrorism strategy.

The escalating abuse of the state secrets privilege has not gone unnoticed by Congress. Rep. Jerrold Nadler (D-NY) introduced in June the “State Secrets Protection Act” (H.R. 5956). The bill seeks to “provide safe, fair, and responsible procedures and standards for resolving claims of state secrets privilege.” Also signing on to the legislation is Tom Petri (R-WI), John Conyers Jr. (D-MI), and Zoe Lofgren (D-CA). Rep. Nadler has said in support of the bill: “the ongoing argument that the state secrets privilege requires the outright dismissal of a case is a disconcerting trend in the protection of civil liberties for our nation. This important bill recognizes that protecting sensitive information is an important responsibility for any administration and requires that courts protect legitimate state secrets while preventing the premature and sweeping dismissal of entire cases.” Rep. Nadler’s bill would require judges to find alternatives to outright dismissal of lawsuits when the privilege is invoked and thus would deal a serious blow to the federal government’s ability to shield itself from scrutiny involving spying, torture, warrantless wiretapping, and the lethal targeting of U.S. citizens. H.R. 5956 has been referred to committee but so far has not been placed for a hearing. In order for this bill to gain any traction, your member of Congress needs to hear from you that you think state secrets reform is important. Contact your Representative today, before the constitutional rights of more Americans are fed to the six-headed monster of state secrecy. 

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