The U.S. Supreme Court heard oral arguments Nov. 8 from the FBI for a 10-year-old lawsuit, Fazaga v. FBI, which originated from the surveillance of Muslims in Orange County mosques during the years 2006 and 2007. 

The court’s decision will determine if the government spying on a mosque can be considered a violation of religious freedom, or if it is protected by the state secrets privilege — a rule that allows the government to withhold information that may be damaging to national security.

“The FBI, continues— to this day — to engage in fishing expeditions on Muslim communities, based on no other fact (than) that we happen to be Muslim,” said Amr Shabaik, civil rights managing attorney for the Council on American-Islamic Relations – Los Angeles (CAIR-LA) . “This surveillance continues in a variety of different formats.”

This case stems from the FBI’s order for undercover informant Craig Monteilh to pose as a Muslim convert and spy on the congregants of several Orange County mosques in search of terrorist activity. The Supreme Court will issue a decision some time before the end of its term in late June 2022. 

Posing as a convert named Farouk al-Aziz, Monteilh quickly befriended and impressed members of the Muslim community. In reality, Monteilh was executing a premeditated scheme, known as Operation Flex, where he secretly recorded conversations and filmed inside people’s homes, mosques and businesses, using devices hidden in everyday objects. 

When Monteilh started to speak of violence, he was reported as a possible terrorist to the FBI, his employers, by the local Muslim community. 

“I said (to members of the Muslim community), ‘We should carry out a terrorist attack in this country, because I'm tired of just staying around doing nothing,’” Monteilh recalled in an interview on This American Life. “‘I've got access to weapons. I know how to do things. We should bomb something.’”

According to Shabaik, Monteilh left secret recorders disguised as key fobs in mosques and offices to listen in on conversations he was not privy to. Monteilh also collected emails, phone numbers and other personal background information from congregants.

Ali Uddin Malik and Yasser Abdelrahim, congregants at the Islamic Center of Irvine (ICOI), and Sheik Yassir Fazaga, imam of the Orange County Islamic Foundation (OCIF), were named as plaintiffs in the case. They sued the FBI for illegally targeting Muslim community members in a violation of their constitutional rights to religious freedom and privacy. 

The FBI’s main argument has been that the state secrets privilege allows the government to withhold evidence that could harm national security. The 9th Circuit Court of Appeals ruled in favor of the plaintiffs in 2019 and also stated the Foreign Intelligence Surveillance Act (FISA) — a 1978 law passed after the Watergate era — provided an avenue for courts to review documents and information the government was claiming to be state secrets. 

“If the government's position that this is a matter of national security and state secrets is adopted, it basically means the government can simply claim state secrets anytime it engages in any kind of unlawful surveillance of a community,” Shabaik said. “A ruling in favor of the government with that broader approach, would just deny individuals the right in a forum to present their constitutional claims.”

Fazaga v. FBI reached the U.S. Supreme Court after the justice department appealed the circuit court’s ruling and urged the justices to overturn the decision and dismiss the lawsuit.

During the oral arguments, justices debated whether to send the case back to the 9th Circuit Court of Appeals in San Francisco or to bring them to the U.S. District Judge Cormac J. Carney in Orange County. According to Mona Shadia, a Chapman political science professor, the Supreme Court’s decision could set a precedent for what is tolerable when invoking state secrets privilege.

Shadia compared the situation to Catholics being monitored in a confession room or to Jewish worshippers being spied on in their synagogue.

“For some reason, after 9/11, the idea of surveilling Muslims and implicating them and things that we have nothing to do with was seen as normal and as necessary as part of national security,” Shadia said. “I hope the Supreme Court sets a clear message by saying that this is unacceptable.”

Following the 9/11 terrorist attacks, many people in the Muslim community have voiced frustrations at the increase in incidents of Islamophobic incidents and religious discrimination. Policies such as the Patriot Act and Counter Violent Extremism (CVE) have been called out for falsely legitmizing fear against Muslim Americans.

“The environment after 9/11 has really has put … some Muslims like myself — who are trying their best — (in a position of trying) to articulate what Islam is and what it's not,” said Shaykh Jibreel Speight, Director of Muslim Life at Chapman.

Shabaik emphasized how a lot of modern practices reflect a discomfort with Muslims in society, even today.

Fazaga v. FBI  mirrors similar instances of surveillance that have taken place. The FBI has maintained a roster of 15,000 informants, many of them tasked with spying on Muslim communities across the U.S. and some paid as much as $100,000.

From 2002 to 2014, the New York Police Department (NYPD) placed undercover informants in predominantly Muslim commuties to infiltrate student groups and mosques, but later acknowledged the operation led to no credible intelligence leads. NYPD also spied on Muslim Americans in New Jersey and Connecticut, which led the department to pay more than $1 million in damages and legal fees in 2018 to settle three lawsuits.

Pete Simi, Chapman sociology professor and expert on white supremacy, told The Panther the passage of the Patriot Act, the war on drugs and the documented history of the FBI engaging in nefarious activities, were all factors that allowed for the FBI to engage in such surveillance.

“(9/11) created a situation where we were willing to move toward … authoritarianism, allowing the state to have a really inordinate amount of authority and power,” Simi said. “Frankly, because (there) was a sense of necessity that this is what's required to deal with at least a perceived grave threat.”

When asked about the implications of Fazaga v. FBI, Speight told The Panther if the Supreme Court sides with the government, Americans will have to reevaluate the sanctity of their right to privacy.