FBI v. Fazaga

 In 2006-2007, during the height of the Global War on Terrorism, the FBI was using paid informants to infiltrate mosques in Orange County California. This FBI operation of mass surveillance and indiscriminate information gathering was called “Operation Flex.” It took place over the course of many years. The informant was instructed to pose as a new convert to Islam, and learn everything he can about the mosques, their imams, and the members of the congregations. Included in the bulk information gathering were the names, telephone numbers, email addresses, and the religious and political beliefs of many Muslim Americans, just for exercising their constitutional right to religious freedom. Video and audio recording devices were used to capture various conversations, prayers, and track peoples’ movements.

The plaintiffs, Sheikh Yassir Fazaga, Ali Uddin Malik, and Yasser Abdelrahim are being represented by the law firm Hadsell Stormer Keeny Richardson & Renick LLP, the Council for American-Islamic Relations of Greater Los Angeles, and the ACLU of Southern California. Together they have filed a class-action lawsuit against the Federal Bureau of Investigations for illegally monitoring and infiltrating mosques in Southern California. The plaintiffs claim they were targeted for being Muslims and were subject to unlawful surveillance because of their religion. Further, the lawsuit alleges that the FBI’s operation unlawfully targeted individuals on the basis of their religious beliefs and practices, in violation of the First Amendment. Also, that the FBI unlawfully collected information on religious practices in violation of the Privacy Act, constituting unreasonable searches in violation of the Fourth Amendment. The suit requests that the FBI discard all information illegally collected and obtained through their unlawful operation and pay damages to the individuals who were targets of the operation and surveillance.

The Supreme Court heard arguments on the case on November 8^th, 2021, where no decision was concluded. Prior to this the United States District Court for the Central District of California, A lower court in 2011 previously dismissed this lawsuit against the FBI but permitted the suit to go forward against the individual government agents. It was dismissed on the grounds of “state secrets” privilege, is a permissible reason to conduct such surveillance operations, regardless of whether the complaint’s allegations are true, or not. the government has discriminated against American citizens on the basis of their religion in violation of the First Amendment, is a state secret.  This marked the first time that the federal government has asserted the state secrets privilege to dismiss a lawsuit brought against them by United States citizens alleging that a domestic law enforcement operation, violated their constitutional rights.

The primary question in this case is, does the Foreign Intelligence Surveillance Act of 1978 authorize a district court to resolve the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence? A secondary question, in this case, is whether or not it is permissible for the Federal Bureau of Investigation and or the federal government departments to infringe upon an individual's and an organization’s constitutional right to the freedom to practice their religion based on the pretense of national security? Starting my analysis, it must be stated that this case is wholly unlike any before it in the whelm of religious liberty brought before the supreme court. So, when there is a final ruling, it will set a precedent for all future surveillance and religious freedom cases going forward.  The debate around this issue is one of freedom versus security, and do we as citizens value the tyrannical version of “national security” over our God-given rights to freedom? The implications for this case if it is to be upheld would set a precedent of tyranny, where the government can surveil, any religious organization purely based solely on suspicion, and with zero evidence. Not only is this highly discriminatory towards minorities, but it erodes trust in the government, and is an affront to the enumerated rights and protections outlined in the constitution, specifically the First, and Fourth Amendments. If there can be loopholes for government agencies to illegally spy on the Muslim community because of “national security” and “national secrets” then nothing is sacred, and all can be a target of big brother.  

            I am of the opinion and argue that no state secret, or the state of our national security, is ever a legitimate enough reason to infringe on individual rights. Specifically, in regard to the Fazaga case the importance lies in that while the surveillance did not impede, or directly interfere with the plaintiff’s religion, or religious activities: the operation creates a veil of suspicion between the state and organized religion, where one cannot trust the other. Further, it is unfair treatment as well as discriminatory of their religion because of the stereotyping of the Islamic faith, which was a violation of their First Amendment. Regardless of whether the FBI was to probe the houses of worship and communities of all faiths, it would be wrong, and certainly unconstitutional in the manner in which Operation Flex was undertaken. I believe the Supreme Court of The United States will rule in favor of the plaintiffs because their Fourth Amendment right to not be subject to unreasonable search and seizure was clearly violated. First, because there were no warrants issued, second there was no evidence of these congregations or churches being involved in any terrorist activities/communications, and lastly the bulk collection of personal data by a federal Justice Department agency. 

https://www.aclu.org/cases/fbi-v-fazaga