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Case Against FBI for Spying on OC Mosques Makes it to Supreme Court

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The Supreme Court heard arguments for FBI v. Fazaga, a case in which members of the Orange County Muslim American community took the FBI, on Nov. 8. The plaintiffs claim that the FBI had illegally spied on them in an operation that encroached on their civil liberties and privacy and didn’t lead to any terrorist convictions. 

The FBI launched a counterterrorism operation entitled Operation Flex in 2006. Its chief informant, fitness instructor Craig Montielh, pretended to be a convert to Islam and infiltrated some of Orange County’s largest and most diverse mosques. While undercover, Montielh planted recording devices and spyware, giving FBI access to the private conversations of congregants. 

The operation stagnated after Montielhthe informant, according to the plaintiffs, began mentioning domestic terrorism and threatening violence. TIronically, this resulted in the mosque reporting him to the FBI as a potential threat. 

Two years after the report was filed, Montielh was identified as the informant after he began speaking out about his role in the operation. 

Three Muslim Americans from Orange County filed a suit against the FBI for unlawfully spying on the Muslim community based on their religion, seeking for the destruction of the files the FBI had obtained from spying. The lead plaintiff, religious leader Sheikh Yassir Fazaga, was supported by two additional congregants. The District Court for the Southern District of California ruled against the plaintiffs, agreeing that the FBI had a right to withhold the information it had obtained in order to protect state secrets and dismissed the discrimination claims. 

The Court of Appeals for the Ninth Circuit disagreed and argued that the district court must consider religious discrimination under Congress’s Foreign Intelligence Surveillance Act (FISA). After the FBI appealed this ruling, the Supreme Court agreed to hear the case. 

Conflicting opinions have arisen as the case has gained national attention. Deputy Solicitor General Edwin Kneedler, representing the FBI, argued that dismissing the state secrets privilege would harm the executive branch’s ability to protect national security and should thus be upheld. 

Many prominent figures argue against Kneedler, stating that the government shouldn’t be able to use the state secrets privilege to justify otherwise indefensible breaches of individual privacy. 

Ahilan Arulanantham, UCLA Law Center for Immigration Law and Policy faculty co-director and attorney, expressed his stance on the matter. 

“The government cannot hide behind state secrets to pretend everything is national security. An independent judge or entity should be able to sort through the evidence and decide whether this constitutes state secrets or not,” Arulanantham said.

The Justices of the Supreme Court debated whether it was appropriate for the government to simply invoke state secrets at no consequence. However, several justices from both sides of the political spectrum disagreed with the Ninth Circuit’s ruling. They were instead interested in finding a solution in which they can have the circuit court reexamine its ruling while also letting the plaintiff’s claims in FBI v. Fagaza proceed in the Supreme Court. 

The Supreme Court is expected to make a decision on the case by summer of 2022.

Elaina Martin is a City News Intern for the fall 2021 quarter. She can be reached at