By Peter Bibring, Senior Staff Attorney
Yesterday, a district court judge threw out claims brought by members of Southern California’s Muslim community that the FBI undertook a massive operation to surveil them on the basis of their religion. In tossing these claims from the suit, which was filed by the ACLU of Southern California, the Council on Islamic American Relations (CAIR) and the law firm Hadsell Stormer Richardson & Renick LLP, the court didn’t say that the FBI had not engaged in the alleged surveillance, or that it had indeed complied with the First Amendment. Instead, the court relied on the government’s invocation of the “state secrets” privilege, saying that even trying to determine whether the FBI had violated the Constitution might risk disclosure of information that could harm national security.
From the term “state secrets,” you might think the case involved spies, hush-hush arrangements with foreign governments, or people detained at secret foreign prisons – as some state secrets cases do. But this one involves the FBI’s investigation into law-abiding U.S. citizens and residents in Orange County, California, called “Operation Flex.” In June 2006, FBI agents recruited Craig Monteilh, a man with a file full of felony convictions, to pose as a convert to Islam at one of the largest mosques in the area. The FBI paid Monteilh to spend the next fourteen months meeting as many members of the Muslim community as he could. He made audio recordings of every interaction, as he gathered names, telephone numbers, e-mails, political and religious views, travel plans, and other information on hundreds of individuals in the Muslim community. According to Monteilh’s own sworn statement, he was told to pay special attention to community leaders and those who seemed especially devout.
The absurdity – and illegality – of Operation Flex were well documented this week on the radio show This American Life. When asked if the FBI had particular targets in the Muslim community that they wanted to have investigated, Monteilh said, “No. They said the targets would come to me.” In other words, Operation Flex was a fishing expedition that targeted people because of their religion. But in the end, after Monteilh began incessantly about jihad and violence, members of the community did exactly what you’re supposed to do: they reported him to the FBI. After hundreds of hours of Monteilh’s time and thousands of taxpayer dollars “Operation Flex” resulted in zero criminal convictions. No one was ever even charged with a terrorism offense.
According to the district court, we’ll never be allowed to know whether the FBI violated the Constitution when they authorized Operation Flex because it would require the disclosure of state secrets. Because the state secrets privilege essentially gives the government a blank check to halt a lawsuit in its tracks, it is currently under fire in Congress. “The ongoing argument that the state secrets privilege requires the outright dismissal of a case is a disconcerting trend in the protection of civil liberties for our nation,” said Representative Jerrod Nadler (D-New York), who earlier this summer introduced a bill to limit state secrets in favor of less drastic alternatives. The privilege also has a troubling history. One of the first modern cases to apply the privilege relied on it to dismiss a suit against the government over the crash of a military plane because of the secrets in the accident report. But decades later, the daughter of one of the pilots discovered that the accident report wasn’t secret at all, and described only negligence — human errors that were embarrassing to the government.
U.S. Justice Department attorney Anthony Coppolino argued that revealing who was being investigated, how they were being investigated, and why they were being investigated would reveal the government’s motives and alert the enemy. But it’s far from certain that the case would require disclosing all that information. And if it ever proved necessary, the Foreign Intelligence Surveillance Act (FISA) provides clear procedures for protecting sensitive information. In a particularly unfortunate twist, because the district court allowed the FISA claims against the individual FBI officers to go forward, it may well end up looking at the same evidence to resolve that claim that it would need to address the claims it threw out.
In our democratic society, it is wrong for the courts to allow the government to avoid defending the legality of its conduct under the Constitution when the rights of hundreds of law-abiding Muslim citizens in Southern California are at stake. We intend to appeal the court’s decision.
 

By Mark Rosenbaum, Chief Counsel
Five times a day, Princess Jasmine escapes the pressures of the royal palace to walk through the city streets under the cover of a modest headscarf.
Or at least that's what happens in Aladdin: A Musical Spectacular, the live show that performs five times every day in front of hundreds in Disney's California Adventure theme park in Anaheim. Aladdin's broad humor and characters are geared toward young children, but everybody enjoys the show.
When real-life Disney employee Imane Boudlal asked to wear a hijab, the headscarf worn by observant Muslim women, during her hostessing shift at a California Adventure restaurant, Disney told her no.
Imane, a U.S. citizen born in Morocco, had endured anti-Muslim and anti-Arab harassment since she started as a hostess at Storytellers Café in 2008. She was repeatedly taunted as a "terrorist," a "camel," "bombmaker," and "Kunta Kinte," the slave from Alex Haley's "Roots". (One of Imane's attorneys, Anne Richardson of Hadsell Stormer, called it the most egregious case of of discrimination and harassment that she's seen in her 22- year career.) When she reported these attacks to her Disney managers, they told her that she had to put up with them.
When she decided to start wearing a hijab full time, coinciding with the Muslim holy month of Ramadan, Disney sent her home without pay. Even though Disney showcases women in headscarfs every day, in the It's a Small World ride and elsewhere, Disney managers told Imane that wearing a hijab would make some customers uncomfortable and negatively affect their experiences at the cafe. Imane offered to wear a simple hijab with the Disney logo, or a hijab the same color and material as her work uniform, but her Disney manager gave her an ultimatum: either give up her position as hostess by working at the rear of the restaurant, or cover up her hijab with a ridiculous, wildly ostentatious hat worn by no other employee at the cafe.
When Imane explained that both alternatives demeaned her religion and she could not accept the alternatives demanded, Disney stopped scheduling her shifts.
Disney claims to prides itself on the diversity and tolerance of its organization. In fact, a "Spirit of Tolerance" plaque hangs in an exhibit on Disneyland's Main Street. This principle of tolerance for all religious beliefs is so integral to our American way of life that Congress extended its reach to hold all private workplaces and employers accountable to precisely the same constitutional standard as we hold all of our governmental institutions. Title VII of the Civil Rights Act of 1964 prohibits private workplaces from being environments where any religion may be disparaged or treated unfavorably. To that end, Imane filed a lawsuit against the Walt Disney Corporation.
For all intents and purposes, she was fired for her religious beliefs. And it's clear that Imane was targeted by Disney employees because she is a Muslim.
Imane no longer works for Disney, or wants to. She lives in Anaheim and finds herself driving far out of her way to avoid Storytellers Cafe. And every night, the boom of Disney's fireworks show reminds Imane of her mistreatment. At her press conference yesterday, Imane was asked why she's pursuing the suit. She said, simply, that "I don't want to see anyone go through what I've been through."
In America, no one should have to.