A federal judge Tuesday threw out a lawsuit filed against the U.S. government and the FBI over the agency's spying on Orange County Muslims, ruling that allowing the suit to go forward would risk divulging sensitive state secrets.
Comparing himself to Odysseus navigating between a six-headed monster and a deadly whirlpool, U.S. District Judge Cormac J. Carney wrote that "the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security."
The judge wrote that he reached the decision reluctantly after reviewing confidential declarations filed by top FBI officials, and that he was convinced that the operation in question involved "intelligence that, if disclosed, would significantly compromise national security."
Carney allowed the suit to stand against individual FBI agents under the Foreign Intelligence Surveillance Act, which allows those who were improperly subjected to electronic surveillance to sue.
The lawsuit was centered around the actions of Craig Monteilh, who alleges that he posed as a Muslim convert at the behest of the FBI to collect information at Orange County mosques. The American Civil Liberties Union of Southern California and theCouncil on American-Islamic Relations sued on behalf of community members who alleged that the FBI engaged in a "dragnet" investigation that indiscriminately targeted Muslims based on their religion, planted bugs in offices and homes, and listened in on private religious conversations.
Attorneys for the plaintiffs said late Tuesday that they would appeal the judge's decision.
"That's terribly unfortunate that there's a doctrine in the law that allows courts to throw out cases that allege serious constitutional violations based on secret evidence the judge reviews behind closed doors that never sees the light of day," ACLU attorney Peter Bibring said after Carney's ruling. "That shouldn't be in a democratic society."
In his decision, Carney called some of the allegations about the FBI investigation involving Monteilh "disturbing."
Monteilh, a convict who the FBI has acknowledged worked as an informant on a case dubbed Operation Flex, has since taken his story public and filed lengthy court papers for the ACLU outlining his FBI work. In a declaration, Monteilh wrote that he was not given specific targets by the FBI but rather tasked with "immersing myself in the Muslim community and gathering as much information on as many people and institutions as possible."
He claimed to have conducted surveillance in about 10 Southern California mosques using sophisticated audio and video equipment. Monteilh has separately sued the government, alleging that his rights were violated and that his life was endangered while working as an informant.
The Obama administration asserted the state secrets privilege in the case last August. U.S. Atty. Gen. Eric H. Holder Jr. said in a declaration that he determined that national security was at stake after "careful and actual personal consideration of the matter." FBI Assistant Director Mark Giuliano wrote in a declaration that Operation Flex was "focused on fewer than 25 individuals and was directed at detecting and preventing possible terrorist attacks."
Giuliano also filed additional declarations shielded from public view that Carney said he "heavily relied upon" in reaching his decision.
Department of Justice attorney Anthony Coppolino told Carney in court Tuesday that to parse through the truths, half-truths and falsehoods in Monteilh's statements was not possible without wading into sensitive, privileged information.
"You'd have to throw open the books," he said. "What you have is a he-said, he-said … Mr. Monteilh versus the FBI."
While acknowledging that asserting the state secrets privilege could be seen as "unfair or harsh," Coppolino said it was necessary for the greater public good. He said divulging information about how the U.S. conducts counterterrorism investigations "could cause harm for years to come."
Attorneys representing two agents who allegedly acted as Monteilh's "handlers" and their supervisors argued that their clients were prevented from fighting the claims because the information about why and how they conducted their investigation was classified.
"Our clients literally are defenseless to defend themselves," attorney David Scheper contended. "It's just not a fair fight."
ACLU attorney Ahilan Arulanantham argued in court that the government should not be allowed to "shut the courthouse door" simply by citing national security. He said throwing out the lawsuit would mean "exempting huge swaths of government activity to judicial oversight."
Carney, a former private attorney, was appointed to the Orange County Superior Court by Democratic Gov. Gray Davis in 2001. He was nominated to the federal bench by Republican PresidentGeorge W. Bush a year later.