Late yesterday, attorneys representing Muslim Americans illegally spied on by the FBI responded to a U.S. Department of Justice (DOJ) request to dismiss their lawsuit that claimed that the suit would require the government to divulge state secrets. 
The motion was filed by the American Civil Liberties Union of Southern California (ACLU/SC), the Council on American-Islamic Relations—Greater Los Angeles Area (CAIR-LA), and the firm of Hadsell, Stormer, Keeny Richardson and Renick (HSKRR).  It requests that the U.S. District Court for the Central District of California not review secret evidence filed in support of the DOJ’s to dismiss the FBI suit until the court has ruled on whether the state secrets doctrine can properly be invoked in the case.
The DOJ’s decision to invoke the state secrets privilege to dismiss the suit against the FBI’s unlawful infiltration of mainstream mosques in Southern California is unprecedented. Attorney General Eric Holder filed a declaration as part of the DOJ request – a move that would prevent the FBI from explaining its actions regarding broad surveillance of the Orange County mosques and targeting Muslim Americans solely because of their religion.
“It is shocking that the Obama Administration would invoke the state secrets privilege to dispose of this lawsuit,” said Ameena Mirza Qazi, deputy executive director of CAIR. “State secrets should be an evidentiary rule to keep specific information or documents from being presented in court. It should not be used to prevent those wronged by the government from having their day in court.”
“This case alleges that the most basic constitutional protections of law-abiding Americans were violated by a domestic law enforcement agency, conducting an investigation on U.S. soil,” said Peter Bibring, staff attorney for the ACLU/SC.  “The government’s suggestion that the FBI’s actions here are state secrets would mean a sweeping expansion of the state secrets doctrine.”
“Allowing the government to hide behind this spurious claim of state secrets would mean Americans that suffer the worst abuses from law enforcement have no recourse in the courts.” said Dan Stormer of HSKRR.
“The government’s theory would allow the FBI to violate the constitution with impunity using the talisman of state secrets.”
The groups filed Fazaga v. FBI in February. The lawsuit seeks injunctive relief on behalf of all those targeted by the FBI agents and their informant by requiring the FBI to turn over or destroy all information collected through the discriminatory investigation, as well as requesting damages for emotional distress for the plaintiffs Sheikh Yassir Fazaga, Ali Malik, and Yassir Abdel Rahim.
The lawsuit alleges that during 2006 and 2007, the FBI collected extensive records about the day to day religious practices of members of various Los Angeles area mosques, including detailed records about which members attended daily prayers and hundreds of hours of video and audio recordings of discussion groups, prayers, religious lectures and social and cultural events at various mosques. Many of those targeted were American citizens. In more than five years since the investigation began, the surveillance led to criminal charges against only one individual, which prosecutors ultimately dismissed.

The Pelican Bay hunger strike has ended, but the conversation about solitary confinement must continue. The California Department of Corrections and Rehabilitation (CDCR) must change its policies on solitary confinement for many persuasive reasons.  Some may point to the vast number of studies that have found long-term solitary confinement to be psychologically harmful. A 2003 UC Santa Cruz study, for example, found that months or years of isolation causes inmates to suffer from chronic apathy, lethargy, depression, despair, and irrational anger.
Some may rely on Aristotle’s argument that, by depriving a person of personal interaction, we rob him of the chance to rehabilitate himself into a virtuous citizen. Some will recall Alexis de Tocqueville’s 1826 finding that “absolute solitude, if nothing interrupts it, is beyond the strength of man; it destroys the criminal without intermission and without pity; it does not reform, it kills.”
Others may cite the 1890 Supreme Court opinion stating that prisoners subjected to solitary confinement became violently insane and committed suicide. Still others may be persuaded by the myriad accounts of former prisoners of war and hostages who describe losing their minds when subjected to solitary confinement. And others may quote the California prison psychiatrist who concluded, “It’s a standard psychiatric concept, if you put people in isolation, they will go insane.”   In 2006, SHU units constituted 5 percent of California’s prison population but accounted for about half of inmate suicides. In 2005, SHU units accounted for almost 70 percent of suicides.
And some will no doubt be moved by the notion that solitary confinement violates basic notions of human decency, the constitution, and international human rights.
But we should all be concerned with California’s use of the SHU because the SHU undermines public safety. Inmates who spend lengths of time in solitary confinement are more likely to commit crimes in the future. People who have been cut off from human contact are ill- equipped to be productive members of our society, and the vast majority of inmates in solitary confinement will be released someday. In 2006, fully 95% of the inmates in solitary confinement at Pelican Bay were scheduled for release. So, if psychological, philosophical, legal, and humanitarian concerns provide insufficient rationale, we should call on the CDCR to make changes if only in the interest of self-preservation.

• To use solitary confinement only in exceptional cases, for as short a time as possible.
• To prohibit the use of solitary confinement for prisoners suffering from mental illness and developmental disabilities.
• To require regular mental health evaluations for prisoners in the SHU, and to require prompt removal of those who develop signs of mental illness.
• To mitigate extreme isolation by allowing some human interaction with staff or others, and by allowing some access to the outside world in the form of books, magazines, television, radio, and other media.
• And to fully prepare inmates who spent time in the SHU to reintegrate into the community.

 Hector Villagra is the Executive Director of the American Civil Liberties Union of Southern California.

In response to the July 5th beating death by Fullerton Police of 37-year-old Kelly Thomas, a homeless man with schizophrenia, ACLU of Southern California Executive Director Hector Villagra released the following statement:

“While much of what led to Kelly Thomas’ death is still hazy, several things are already crystal clear now.

We are pleased that the FBI will investigate Thomas’ death.  Although Orange County District Attorney Tony Rackauckas reportedly has some two dozen investigators working on the case, interviewing up to 100 witnesses, the district attorney has an abysmal track record when it comes to investigating and prosecuting officer-involved deaths.

In 2004, an investigation by the O.C. Weekly found that of 50 officer-involved shootings in the previous five years, not a single one was pursued for prosecution by the D.A.’s office.  In 2007, the D.A. cleared two Huntington Beach officers in the shooting death of Ashley McDonald, who was shot 15 times after brandishing a knife.

The bottom line is that the district attorney’s office is simply not the body to conduct an independent investigation. These are prosecutors accustomed to working with police officers and building their cases with the assistance of police officers.  A thorough, impartial inquiry requires investigators who are not in daily contact with police; indeed, whose daily work doesn’t require police cooperation.

We call on Fullerton Police and the district attorney’s office to release a full accounting of what took place, including the release of additional videos from the bus depot showing the beating.  The district attorney’s office has said those videos may present a different picture of the incident; we won’t know until they’re shared with the public.

The incident also spotlights the complete lack in Orange County of government services for the mentally ill and chronically homeless populations. Without such services, tragic incidents like this will continue to occur, as police officers, improperly trained in identifying people with mental illness or de-escalating encounters with them, are called upon to respond to homeless individuals with untreated illnesses." 

A previous version of this page mistakenly referred to an investigation conducted by the LA Weekly.  The investigation was in fact conducted by the O.C. Weekly.  We regret the error.