FBI surveillance of Muslims: FBI et al. v. Fazaga et al. (Case No. 20-828).

Take a second to image a different life for yourself. It is 2006 and you are a Muslim young-adult living in California. You get word of a new convert at a nearby mosque and hope to make his acquaintance and wish him well with his new religious affiliation. Perhaps you reach out and buy him a book on Islam, take him out to tea, invite him to dinner, or show him the correct movements of prayers. A few times when you are hanging out with this newcomer, he mentions jihad and tries to get your opinion on Islamic violence. Knowing that Islam doesn’t condone violence, you tell him as much and, though this encounter is weird, you shrug it off as simple ignorance about Islam. Then, one day, as you are leaving a last-minute appointment with your chiropractor, you are stopped by FBI agents. These agents take you to a local coffee shop and begin to question you about your opinions on terrorism. It soon becomes apparent to you, and others, that the newcomer was not who you had thought. This was what happened to Yassir Fazaga, Ali Malik, and Yasser Abdelrahim. In this real-life scenario, you were Yasser Abdelrahim, a Californian congregant of the Islamic Center of Irvine (ICOI), who was one of many to welcome a supposed convert (Monteilh, renamed “Farouk” after conversion) before learning of his ulterior motives. In fact, it was later discovered that Monteilh had been gathering names, phone numbers, and email addresses of other congregants at the ICOI while also recording both audio and video in people’s homes, mosques, and businesses. After learning of this, Fazaga, Malik, and Abdelrahim came together to sue the FBI as well as several officials (some named and unnamed in the suit) on the grounds that their rights to religious liberty and privacy had been violated. After their loss in the District Court, the Ninth District Court of Appeals sided with them before the case was appealed to the Supreme Court of the United States (SCOTUS). This SCOTUS case lacked media attention but is relevant and important to legal interpretations of government surveillance and privacy. This article will examine the SCOTUS case and the opinion written by Associate Justice Samuel Alito.

Background

As stated in Justice Alito’s brief, Fazaga, Malik, and Abdelrahim originally sued on the grounds that through this operation, government had illegally gathered information on them which violated the Establishment Clause, the Free Exercise Clause, the Fourth Amendment, parts of the Fifth Amendment’s Due Process Clause, the Religious Freedom Restoration Act, the Privacy Act, the Federal Tort Claims Act, 42 U.S. Code section 2000(bb), 28 U.S. Code section 1346, the Foreign Intelligence Surveillance Act of 1978, 50 U.S. Code section 1810, 5 U.S. Code section 552(a), and California law. Granted the average person has limited knowledge of any of these grounds for lawsuit, here’s a summary: violation of religious freedom and privacy. [Note: To avoid further reference of more complicated legal terminology, it is recommended that interested parties visit the Supreme Court opinion from Justice Alito.]

So, what happened to the slew of claims that Fazaga, Malik, and Abdelrahim were pursuing retribution for? All claims were dismissed in court with the exception of that appealing to the Foreign Intelligence Surveillance Act of 1978 (FISA). How is it that these were dismissed? The government’s legal team claim that the “state secrets privilege” required dismissal of most of them. Alito writes, “This claim applied to the following categories of information: information that could ‘confirm or deny whether a particular individual was or was not the subject of an FBI counterterrorism investigation,’ information that could reveal the ‘initial reasons’ for or the ‘status and results’ of an ‘FBI counterterrorism investigation,’ and information that could reveal the ‘sources and methods’ used in such an investigation” (see page 6 of Alito’s opinion). More clearly, this means that not only where these three men (1) recorded in their homes, businesses, and mosques; and (2) questioned with a clearly prejudiced view of their beliefs. But these men will not get to know the official reasons why there were investigated, whether or not they were even subject to an official FBI investigation, or the full range of surveillance means that might have been employed on them.

What Exactly Did SCOTUS Rule?

So, if it is the case that so many claims from the original suit were dropped in lower courts, certain questions remain about this case, such as what was the primary focus of the Supreme Court’s ruling? in what way is justice being served? and what happens now? All these questions will be the remaining focus of this article. Firstly, what got this case to SCOTUS and what did they do with it. Their focus on this case was whether or not a specific section of FISA bypassed the state secrets privilege. If this were the case then Fazaga, Malik, and Abdelrahim might be able to pursue other legal action for the transgressions committed against them. In particular, as Justice Alito states, SCOTUS was looking for specific language in FISA that would either explicitly or implicitly imply that Fazaga’s claim was correct. Unfortunately, Alito closes with (on page 13 of his opinion) “We reiterate that today’s decision addresses only the narrow question of whether [the specific section of FISA] displaces the state secrets privilege. Because we conclude that [this section of FISA] does not have that effect under either party’s interpretation of the statute, we do not decide which interpretation is correct.” Though it may not seem clear, this statement means that SCOTUS has overruled the Ninth Circuit Court of Appeals’ opinion that the Fazaga’s claims may be brought against the FBI when considering the religious discrimination that Fazaga and his compatriots had experienced throughout their lives.

How is Justice Being Served?

It can be quite difficult to find the aspects of justice that we have so often strove to find during the civil rights movements of the 21st century. In a press release from the American Civil Liberties Union (ACLU), senior staff attorney Patrick Toomey says, “The Supreme Court’s ruling is a dangerous sign for religious freedom and government accountability in spying cases. Decades ago, Congress established protections for people challenging abusive spying in court, but today’s decision puts a critical safeguard out of reach.” It is clear that the case is not over (as it has been remanded back to the Ninth Circuit Court of Appeals), and thus there is still cause for hope.

What Happens Now?

As previously stated, the case is to be remanded back to the Ninth Circuit Court of Appeals so that, given SCOTUS’ input, they can continue litigation of the remaining claims. As of now, it is unclear when this case is expected to see its next day in court, but this is certainly an important case for religious freedom and privacy in America.