The Constitution is Not a State Secret

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.