DoJ Invokes State-Secrets Privilege In Mosque Surveillance Suit

Josh Gerstein reports that the Department of Justice is seeking to dismiss a suit filed by the Council on American Islamic Relations and the ACLU of Southern California charging that the FBI violated the rights of members of the Muslim community when it used an informant to infiltrate California mosques. The informant, Craig Monteilh, acquired a tape that appeared to show a local mosque attendee, Ahmadullah Sais Niazi, agreeing to participate in a terrorist plot, when in fact Niazi had sought to notify authorities shortly afterward. Prosecutors attempted to try Niazi but the case ultimately fell apart.

The ACLU/CAIR lawsuit contends that Monteilh acted as an "agent provocateur" in a "dragnet investigation" that "did not result in even a single conviction related to counterterrorism." The practice, however, is in line with FBI investigative guidelines allowing agents to perform surveillance on "concentrated ethnic communities" if "these locations will reasonably aid the analysis of potential threats and vulnerabilities, and, overall, assist domain awareness for the purpose of performing intelligence analysis."

The government, however, isn't interested in contesting the case on the merits. Instead, they've invoked the state-secrets doctrine, arguing that the case would reveal "properly protected counterterrorism investigative information," including "evidence detailing the nature and scope of Operation Flex – precisely what that investigation entailed and why it was undertaken, the identity of particular subjects, and the reasons they were investigated."

This is yet another example of the paradox of the state-secrets doctrine as applied by the Bush and Obama presidencies. Rather than blocking individual pieces of evidence, both administrations have sought to dismiss entire suits by arguing that, if allowed to proceed, they would reveal sensitive information. That means that even in cases where the government may be guilty of wrongdoing, it can avoid accountability by simply blocking court scrutiny. As Gerstein notes, Obama was once critical of the Bush administration applying the states' secrets doctrine in this manner.

Attorney General Eric Holder, seeking to curtail critics accusing the administration of hypocrisy, set forth a series of guidelines under which the state-secrets doctrine could be invoked, and the government's response argues at length that its request to dismiss is consistent with those guidelines. It also frequently cites the verdict in Mohamed v. Jeppesen Dataplan, Inc. In that case, the Obama administration successfully blocked court scrutiny of companies charged with facilitating transportation for the Bush administration's extraordinary rendition program, under which terror suspects were transferred to third-party countries where they were tortured. 

Invoking the state-secrets privilege has effectively prevented any court from opining on the legality of the Bush administration's interrogation policies. Now they're doing so in an attempt to block court scrutiny of the FBI's post-9/11 surveillance procedures. 

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