Published on: Monday, November 8, 2021

The U.S. Supreme Court hears arguments Monday in a case involving an FBI undercover operation at a mosque in California. Area Muslims are suing the FBI over a nearly year-long surveillance program that, at least publicly, yielded no results and proved a huge embarrassment to the bureau (article available here).

The FBI called it “Operation Flex”: a counterterrorism investigation in southern California. When three of the Americans targeted by the FBI learned of the investigation, they filed a lawsuit in federal court, alleging that the FBI and its agents had discriminated against them based on their religion and had conducted illegal searches. That lawsuit is now before the Supreme Court, which will hear argument Monday on whether it should be dismissed under the “state secrets” privilege or whether a provision of the Foreign Intelligence Surveillance Act allows it to continue.

The case, Federal Bureau of Investigation v. Fazaga, is the second case this term in which the justices will consider the state-secrets privilege, a doctrine that allows the government to withhold information in litigation when disclosing it would compromise national security. The first case, United States v. Zubaydah, involves how the privilege applies to a request for information about CIA torture at offshore “black sites.”

Like Zubaydah, Fazaga has its roots in the years after the Sept. 11, 2001, attacks. In 2006 and 2007, the FBI paid Craig Monteilh, a former fitness instructor, to act as a confidential informant to gather information about Muslims in Orange County, California. Monteilh attended services at local mosques, where he told worshippers that he wanted to convert to Islam and collected the names and license-plate numbers of people at the mosques. He also made audio or video recordings of almost all of his conversations with people in the local Muslim community, and he sometimes left recording devices behind to capture conversations after he left. Members of the community eventually became concerned that Monteilh was expressing interest in violence – so much so that one community leader reported him to the FBI.

Monteilh’s identity and work as a confidential informant was revealed two years later, in connection with an immigration fraud case that the government eventually asked the court to dismiss.

The government argued that the plaintiffs’ claims alleging religious discrimination should be dismissed under the state-secrets privilege, because allowing the case to go forward would risk the disclosure of information that could harm national security. The district court agreed and dismissed the plaintiffs’ religious discrimination and search claims.

The plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit, which reversed the district court’s dismissal of the religious-discrimination claims. The FBI appealed to the Supreme Court.