US AG Holder invokes state secrets privilege in mosque surveillance lawsuit

[JURIST] US Attorney General Eric Holder [official profile] invoked the state secrets privilege [text, PDF] Monday to block evidence in a lawsuit against the Federal Bureau of Investigation (FBI) [official website] over its investigation into Muslim mosques. The Department of Justice (DOJ) [official website] also filed a motion to dismiss claims and for summary judgment [text, PDF] in the US District Court for the Central District of California [official website] claiming that without the privileged information many of the claims against the FBI could not continue. The American Civil Liberties Union (ACLU) and the Council on American-Islamic Relations of California (CAIR) [advocacy websites] brought a lawsuit on behalf of three Muslim individuals [Politico report] in California against the FBI alleging that during its "Operation Flex," FBI investigators infiltrated mosques and indiscriminately collected information on innocent Muslims simply because they were Muslim. The plaintiffs are bringing the claim under 42 USC § 1985(3) [text] alleging the investigation violated their civil rights including the First Amendment Free Exercise and Establishment Clauses, the Fourth Amendment, the Privacy Act and the Federal Intelligence Surveillance Act. They sought to obtain as evidence classified statements by Mark Giuliano, Assistant Director of the FBI's Counterterrorism Division. Holder filed a declaration formally invoking the state secrets privilege:

After careful and actual personal consideration of the matter, I have concluded that disclosure of the three categories of information described below and in more detail in the classified Giuliano Declaration could reasonably be expected to cause significant harm to the national security, and I therefore formally assert the state secrets privilege over this information.
Holder said the statements could confirm or deny targets of counterterrorism investigations, methods used and confidential sources, which would harm national security. He attached a 2009 memorandum that set policies and procedures for the use of the privilege with the stated goal "to strengthen public confidence that the US Government will invoke the privilege in court only to the extent necessary to safeguard those interests."

The FBI has come under controversy for its investigation of Muslims in the US before. In 2009, FBI Director Robert Mueller [official profile] said the FBI will continue investigating mosques [JURIST report] when there may be evidence or information regarding criminal wrongdoings after the Council of Islamic Organizations of Michigan [advocacy website] sent a complaint to Holder alleging the FBI had been asking members of the Islamic community to spy on religious leaders and followers. The alleged conduct might be allowable under the attorney general's guidelines [text, PDF] passed in 2008 governing FBI investigations, which rights groups say open the door to racial and religious profiling [ACLU backgrounder]. In February, a man claimed [LAT report] that he had been commissioned by the FBI to infiltrate several Orange County mosques. The informant had provided information to the agency regarding Ahmadulla Sais Niazi, a Muslim man accused of lying about his ties to al Qaeda. Last year, the FBI responded to criticism [press release] regarding alleged investigations into mosques and the Muslim community claiming that "the FBI [does not] have a surveillance program to monitor the constitutionally protected activities of houses of worship." Although Mueller has defended the new attorney general guidelines as a "necessary step" in fighting terrorism, the proposed guidelines were amended [JURIST reports] by the DOJ last year before they came into effect to appease Congress and civil rights groups.

 

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