Controversy is still lingering over the FBI’s decision to use an undercover informant to collect information and audio recordings from mosques in southern California as part of an investigation into terrorism that took place during the Bush administration. A federal appeals court is currently dealing with the associated long-running lawsuit in an effort to determine what measures of investigation are acceptable when it comes to combating terrorism.
During “Operation Flex” of 2006 and 2007, the FBI sent an undercover agent into various Islamic religious gatherings to collect information. Many Muslims claimed that these techniques violated their rights of religious freedom and privacy. Then in 2011, the administration of President Barack Obama tried to cover up the bulk of these claims, using the legal principle of state secrets privilege.
On Monday, a panel of three judges at the 9th Circuit Court of Appeals spent over an hour hearing arguments regarding a ruling that was made in 2012. The ruling from 2012 tossed out all the claims made against the government, while still allowing the Muslim plaintiffs to continue with the allegations that the FBI violated federal laws regarding electronic surveillance.
Circuit Judge Marsha Berzon was concerned that by allowing the use of the state secrets privilege, intelligence agencies would be able to put their activities outside the jurisdiction of the civil justice system.
Berzon stated, “We've seen a lot of these terrorist activities recently. There are some of these people who seem to have connections to foreign people and some of them who just pick stuff off the internet and go off and do it. Is the second category of people, investigating them, is that a state secret? Let's say you're investigating ISIS supporters in the United States who never stepped foot out of the United States or stepped foot out of it, but weren't part of some international organization and didn't do anything abroad. Is that all a state secret?"
Justice Department attorney Douglas Letter said in response, “It would depend very much on the specific circumstances. Remember, the Supreme Court and this court have very wisely said this is to be an extremely narrow privilege."
Berzon continued by asking, “If you have a criminal group here which is very dangerous and very organized and affects our security but has no foreign, no direct foreign activity or connection, do we agree that's not what we're talking about? If they like to read things on the internet from imams in Egypt? I'm just having real difficulty seeing where the line is in this really difficult situation where we're in now."
According to Letter, it’s a “very difficult” situation. However, he acknowledged that state secret privilege typically covers matters that involve national security or defense. He believes that the use of the privilege in the matter of the mosque surveillance was appropriate, according to reasons explained in a secret filing that was never revealed to the public. This secret filing supposedly contains the reasoning for why the bulk of the lawsuit was originally dismissed in the first place.
This hasn’t stopped the lawyers of the American Civil Liberties Union, who are representing the Muslims, from arguing that the tactics that were used in the investigation indiscriminately collected personal information on the plaintiffs who had no logical connection to terrorism. According to the lawyers, these tactics are both illegal and unconstitutional, even if there was a legitimate basis for the investigation to take place.
While ACLU lawyer Peter Bebring acknowledged that it wasn’t completely out of line for the government to consider the religion of a group of individuals in a terrorist investigation, the use of this factor is limited by the Constitution.
Bebring said, “The use of religion could be permissible if it is narrowly tailored to a compelling interest, but even if a governmental investigation has at some level a valid purpose, the methods of that investigation can still be unconstitutional.”
For now, it is largely unknown how the appeal judges will rule. All three of the judges, Marsha Berzon, Ronald Gould and George Steeh were originally appointed to their positions during the Clinton administration. The district court judge who originally dismissed most of the case, Cormac Carney, has been serving in his role since he was appointed by former President George W. Bush.