When congregants of the Islamic Center of Irvine, California, began to notice a new convert was acting strangely, it set off a chain of events that led to the mosque's imam facing off against the FBI in the U.S. Supreme Court more than a decade later.

Farouk al-Aziz, who had joined the mosque in 2006 and converted to Islam, had formed close ties with members of the congregation, including its imam, Sheik Yassir Fazaga, and Ali Uddin Malik, who was mentoring him in his religious journey. But Aziz had a strange habit of leaving his keys lying around in various areas of the mosque, and he asked off-putting questions about blowing up buildings and preparing for jihad, according to court filings.

Alarmed congregants reported Aziz to the FBI, only to find out he was an FBI informant named Craig Monteilh who had unlawfully recorded and videotaped them as part of an FBI surveillance program called Operation Flex, according to a proposed class action that Sheik Fazaga, Malik and Yasser AbdelRahim, another man who attended the mosque and interacted with Monteilh, filed in 2011.

"As the imam of the Orange County Islamic Foundation, I worked diligently to establish trust between my community and the U.S. government after the horrifying attacks of September 11 more than 20 years ago. I invited the FBI to speak with the members of my mosque. They looked us all in the eyes and assured us unequivocally that they were not spying on us. We trusted them," Sheik Fazaga said in a statement released by the American Civil Liberties Union in 2021, when the case was to be heard by the U.S. Supreme Court. "But they lied, and our sacred community was shaken to its core."

Sheik Fazaga, who has served as the imam of one of the largest mosques in Southern California since the late 1990s, had spent considerable time counseling worshippers who were anxious about government surveillance even before Monteilh entered the picture, according to the complaint. The revelations that the mosque had been bugged induced paranoia and made it even more difficult to foster a sense of community and security.

It also spurred a more than decadelong legal battle aimed at holding the FBI accountable for the surveillance. In March, the Supreme Court delivered a blow to that pursuit when it struck down a lower court's ruling that Congress meant the Foreign Intelligence Surveillance Act to apply in electronic surveillance cases.

This killed the plaintiffs' bid for the suit to abide by FISA procedures, which allow the government to defend itself using secret government surveillance information that plaintiffs can't see, but at least requires judges to review such evidence to determine if the surveillance was legal. Since state secrets privilege has prevailed, the legality of the surveillance becomes less central to the case.

The ruling, however, allowed the previously dismissed case to move forward in lower court with some of, but not all, the allegations, including those of religious discrimination — something the plaintiffs consider a victory, according to their counsel, UCLA law professor Ahilan Arulanantham. Beyond the implications for the Fazaga case as it enters its second decade, the move could clear the way for more suits.

While the ruling foreclosed one path around state secrets privilege — bringing cases under the slightly more structured procedures of FISA — it illuminated another albeit very narrow one that is prohibitive for people without significant resources. Litigants who can gather evidence of their alleged surveillance or other government mistreatment, independently of the government, may get more leeway from judges who would otherwise rebuff them to protect state secrets, according to Stanford Law professor Shirin Sinnar.

In the aftermath of 9/11, policing and counterterrorism initiatives targeting Muslim, Arab and South Asian communities mushroomed. Legal challenges alleging anti-Muslim discrimination and disregard for the rule of law have piled up without many clear victories. Pakistani Muslim Javaid Iqbal was arrested in post-9/11 sweeps around the New York City area, and his claims of torture and religious discrimination were tossed in a decision mostly remembered for upending evidentiary standards. The NYPD in 2018 settled claims it illegally spied on Muslims, including by using "mosque crawlers" to infiltrate and entrap congregants, as the FBI is accused of doing in Irvine.

While a thicket of laws and policies have protected the government from having to defend its surveillance and antiterrorism practices, state secrets privilege is a linchpin of that web of protection.

Since 9/11, the U.S. government has increasingly claimed state secrets privilege to shield its surveillance activities from legal challenges — no longer just to avoid turning over evidence, but to quash such suits altogether.

In cases where the government is a party, courts have approved state secrets claims about as frequently as they used to since 9/11, but that still represents an increase in raw numbers, according to a quantitative study by Daniel Cassman and published in the Stanford Law Review in 2013.

In the Fazaga case, the FBI argued that the Ninth Circuit put national security at risk by reviving the suit and put forth a broad definition of state secrets privilege, saying not only the privilege was unaffected by FISA, but it also permits cases to be dismissed in a variety of circumstances. The plaintiffs, by contrast, said the privilege only applies to cases whose very subject is secret or to actions involving government contracts.

Weighing in on the decadelong legal journey of the Fazaga case, the Supreme Court did not take a position on just how broadly the state secrets privilege can be applied. But in the absence of a nationwide ruling, judicial deference on national security remains the overwhelming norm, according to Stanford's Sinnar.

"It has always been challenging, and it continues to be challenging to get any relief from national-security-related violations of human rights in court," Sinnar told Law360. "There's a presumption that if the government says something, it will only speak the truth. At the same time, if you've got victims of those policies, who come from distrusted, feared communities, racial others, then there's a certain amount of prejudice and skepticism that surrounds them."

FBI v. Fazaga was one of two cases heard by the Supreme Court this term that dealt with state secrets privilege, with mixed results.

In U.S. v. Abu Zubaydah, the court also ruled in favor of the government, saying that the CIA could claim state secrets privilege to kill a Guantánamo Bay prisoner's bid to subpoena former CIA contractors for information about his torture in the agency's black sites. The fact that extensive information on Zubaydah's torture is already available, including in the memoirs of his torturers, did not sway the majority in the split 6-3 decision. Justice Breyer, however, hinted that Zubaydah may be able to appeal directly to the Polish government for discovery or otherwise rewrite his suit in a way that renders the CIA's cooperation unnecessary.

In the Fazaga case, the court ruled that FISA did not take precedence over the state secrets doctrine, reversing a Ninth Circuit ruling that had partially revived the case in 2019. The case has now been remanded to the Ninth Circuit, where it will proceed under auspices of state secrets privilege rather than FISA, but where the plaintiffs will be allowed to pursue their religious discrimination claims.

Arulanantham said he was going into the next phase of the hard-fought case "cautiously optimistic."

The government had previously argued in district court that Fazaga's religious discrimination claims had to be tossed due to state secrets. That this argument proved a bridge too far for the higher court is a victory, Arulanantham said, adding that his clients look forward to their long-awaited chance to argue those discrimination claims.

"The government was defending the most extreme position, that everything is secret, and you can't even vindicate your religious freedom claims," Arulanantham said. "The part where they win dismissal and evade accountability, even when the plaintiffs know what the government's done and can prove it — that part, at least, they haven't been able to get the Supreme Court's blessing on. To me, that's the biggest victory in Fazaga."

The ruling, while narrow and largely considered a loss for the plaintiffs, leaves open a doorway for similar suits to pursue their claims in spite of state secrets doctrine, as long as they can obtain evidence of their surveillance or other abuses in ways that don't involve obtaining discovery from the government.

What made a difference for Sheik Fazaga and his fellow plaintiffs? They had independently gathered evidence about their surveillance by the FBI, including from Monteilh himself, who spoke extensively to the press about the lengths the bureau told him to go to — such as sleeping with Muslim women and recording their pillow talk to obtain intelligence, the told the Guardian in 2012 — and sided with his former targets to help them in their legal efforts.

They have also obtained documents via Freedom of Information Act requests with the assistance of the ACLU and the Islamic Shura Council, an Orange County, California-based community organization. So the plaintiffs are not demanding much discovery from the government, only that a judge and jury assess the facts that are currently out in the open.

The narrow decision revives some measure of hope for other plaintiffs alleging wrongful government surveillance, according to Sinnar. They may be able to avoid wholesale dismissal on state secrets privilege if they are not seeking discovery and have obtained evidence independently of the government.

Moving forward, Sheik Fazaga and his co-plaintiffs hope to leverage their position to obtain some measure of justice. They and their community have waited a decade for their day in court on the basis of their underlying case, and having a court finally decide whether their First Amendment rights were violated would be a victory in itself, Arulanantham said.

For the government to admit the truth of the congregation's claims — that the FBI did surveil Muslims because they were Muslim — would be a "substantial victory," he added.

The plaintiffs also say they're seeking expungement of surveillance records, saying that the knowledge the FBI has hundreds of hours of recordings of their private conversations feels violating.

"Somewhere sitting in some FBI database is records they've admitted to having of conversations by their informant with Ali Malik's mom while she's making him a nice meal, or conversations with Sheik Fazaga and his congregants about personal and theological views," Arulanantham said.

The new development in the case is a small shift in a deck that remains overall stacked against legal challenges to surveillance in Muslim communities, said Arulanantham, who has specialized in these types of cases for two decades.

"I won't say there have been no victories, because there have been some," he said. "But as a whole, the government has largely escaped liability for its discriminatory policies against Muslim Americans."

--Editing by Jay Jackson Jr.

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