Nationally-renowned immigration expert and Deputy Legal Director of the ACLU of Southern California, Ahilan T. Arulanantham gave a fascinating presentation at Thomas Jefferson School of Law on Thursday, November 8. Arulanantham’s talk was titled, “Fazaga v. FBI: Surveillance and Secrets under the Obama Administration," a look behind the cloak of secrecy that hides government surveillance on citizens – particularly the Muslim community.
According to Arulanantham , starting shortly after the 9/11 attacks, the federal government began an unprecedented expansion of its surveillance activity on United States citizens and residents.
“We think there have been serious human rights violations that began under the Bush Administration, and have continued under President Obama,” said Arulanantham. “Although Obama campaigned against the secrecy policies of the Bush Administration, once in office his Attorney General Eric Holder has cited the state secrets doctrine.
Civil rights groups have challenged expansion of the surveillance through a variety of lawsuits. In response, the federal government has repeatedly asserted that those suits must be dismissed because allowing them to proceed would disclose state secrets and endanger national security. Federal courts have generally sided with the government in these cases, although several judges have vigorously dissented from those decisions, and in doing so have sharply criticized the government’s use of the state secrets doctrine.
The audience heard from Arulanantham about a case the ACLU is involved in - Fazaga v. FBI. Fazaga is a challenge to the FBI’s policy of widespread surveillance on the Muslim communities in Southern California. Details of the FBI’s program were revealed when an FBI informant went public, describing what he called a disturbing policy of dragnet FBI surveillance on the Muslim community that had gone on for years.
“The FBI went to the homes and offices (of Muslims) and asked them questions about their travel, their religious practices, their political views,” and many other questions. Many of the people questioned did not understand they had the right to, as Arulanantham put it, “tell them to buzz off,” because the government does not have the right to surveil private citizens unless a crime has been committed. That policy grew out of the 1976 Church Committee Report, which detailed widespread government surveillance on citizens, even though they did not engage in illegal acts.
As Arulanantham related, the FBI recruited an ex-convict named Craig Monteilh to join a mosque in Orange County (CA) to be an informant and get to know as many members as possible so he could report their activities back to his handlers. One of the people Monteilh allegedly spied upon was an Imam named Yassir Fazaga, on whose behalf the ACLU is suing the government. The case alleges that Monteilh event tried to foment violence among the Muslims he was surveilling.
Arulanantham described a legal counter-weight to the state secrets doctrine, The Foreign Intelligence Surveillance Act (FISA,) which gives citizens who believe they have been illegally spied upon by the government the right to sue in Federal court. Arulanantham says the government uses the state secrets doctrine to conceal information in the name of national security.
Up until this point, Arulanantham says the courts are in a bind and “don’t know what to do” when they weigh FISA against the doctrine of state secrets. But so far, in Fazaga, Arulanantham says the rulings have gone in favor of the state secrets doctrine, except on the issue of how FISA applies.
The Fazaga v. FBI case may well give the courts case law on which to rule in the future. It should be a fascinating case to follow.
This event was organized by the Faculty Colloquium Committee and co-sponsored by the Center for Law & Social Justice and the Muslim Law Students Association.
