At stake is whether plaintiffs can hold the government accountable for violating religious freedoms
SEATTLE – Today, the Ninth Circuit Court of Appeals heard arguments on behalf of Sheikh Yassir Fazaga, Ali Malik and Yasser AbdelRahim, who seek to hold the FBI accountable for violating their religious freedoms. It has been nearly 20 years since the FBI illegally spied on them and other Americans who are Muslim in Southern California. The plaintiffs argued that they should be given the opportunity to challenge the unlawful surveillance and targeting of the Muslim American community.
Statement from Sheik Yassir Fazaga, plaintiff and former imam of the Orange County Islamic Foundation:
“Nearly two decades ago, the FBI sent an informant to my community in the OC disguised as a convert. We were surveilled and harassed, and our sacred community was shaken to its core. Ali, Yasser and I decided to fight back, and after a nearly 20-year battle to present our case, today, we are one step closer to getting our day in court. We and the thousands of Muslims whom the FBI targeted simply for praying in mosques deserve justice.”
The case began in February 2011, after the public learned from a government informant that the FBI was surreptitiously surveilling mosques in the OC under a secret government operation during 2006 and 2007. Based on sworn statements by the informant, the operation was designed to collect information about Muslims who attended mosques in the region, regardless of any suspicion of wrongdoing.
After Sh. Fazaga, Ali Malik and Yasser AbdelRahim filed suit, the government moved to dismiss the case by asserting the "state-secrets" privilege, arguing that defending the case in court would threaten the disclosure of information sensitive to our national security. The district court agreed and dismissed most of the suit on that basis.
The Ninth Circuit reversed on appeal, holding that the procedures Congress established in the Foreign Intelligence Surveillance Act (FISA) should govern, rather than the law state-secrets privilege, and that the case could move forward on that basis. In March 2022, the U.S. Supreme Court reversed the Ninth Circuit’s interpretation of FISA, and sent the case back to the Ninth Circuit for it to answer whether the state secrets privilege required that the case be dismissed.
Statement from Ali Malik, plaintiff:
“I was in my early twenties when I learned that my own government was spying on me and attempting to entrap me because of my religion. I didn’t understand how the government could get away with violating a right that is constitutionally guaranteed. So I decided to hold my government accountable for what it did, and if justice prevails, we may actually get our day in court. As a grown man with three young boys whose rights to proudly practice our faith are at stake, my resolve to hold the government will not waiver. I pray that justice prevails today and that we’re allowed to present the irrefutable evidence that we were spied on because we practiced Islam.”
Today, the plaintiffs argued that the state-secrets privilege does not authorize dismissal of this case; rather, it removes privileged material from the case, but does not prevent plaintiffs from presenting their own non-secret evidence. The plaintiffs' lawyer Peter Bibring, former ACLU SoCal senior counsel, argued that the case should proceed so that a court can decide whether the government violated plaintiffs’ constitutional right to religious freedom.
Statement from Mohammad Tajsar, counsel for plaintiffs and senior staff attorney at ACLU SoCal:
“People of faith–or no faith– have the right to live with dignity and freedom, and to be free from unlawful targeting and surveillance by their own government. Americans who are Muslim are no exception. When the government does illegally target them, we should not accept its wrongheaded attempt to shield itself from accountability by invoking an obscure legal privilege.”
Statement from Hussam Ayloush, chief executive officer of CAIR California:
“When this case was filed in 2011, I did not expect that 12 years later, we would still be asking the courts to provide the plaintiffs and the larger Muslim community the opportunity to receive justice. We are hopeful that the Ninth Circuit will recognize the harm done to the plaintiffs by the FBI’s secret spying on them and move us closer to holding the government accountable for its unwarranted targeting.”
Statement from Ahilan Arulanantham, counsel for plaintiffs and faculty co-director of the Center for Immigration Law and Policy at UCLA School of Law:
“The government cannot have its cake and eat it too. It can claim that it still needs to keep secret information about this 17-year-old investigation of law-abiding Southern California residents, or it can try to defend its dragnet surveillance practices in federal court. But it cannot hide behind the shield of secrecy and simultaneously avoid any accountability for its actions.”
Read the briefing for the argument here.