Editorial: Are state secrets really at stake in Irvine mosque surveillance case?

In 2007, shortly after promising not to engage in covert surveillance of Southern California mosques, the Los Angeles office of the FBI broke its promise.

It hired a paid informant named Craig Monteilh to misrepresent his identity and infiltrate several Orange County mosques. His assignment, as he explains it, was to gather information on Muslims, including some specific people but also those who attended early-morning prayers or recited the Koran or held leadership positions or who otherwise appeared to be particularly religious. During the 14 months he worked on “Operation Flex,” Monteilh says he collected hundreds of phone numbers and emails of innocent U.S. Muslims, and surreptitiously recorded hundreds of hours of video footage and audio recordings, including of religious lectures, private conversations and discussion groups occurring in mosques. When it was eventually discovered that Monteilh had been working as an FBI informant (a fact the bureau does not dispute), several people who had been surveilled sued the bureau, saying among other things that the government had violated their privacy rights and discriminated against them on the basis of their religion.

Now, however, there is a serious chance that a federal appeals court will dismiss some or all of the case. If this happens, it will not be because the court pored through all the evidence, considered the government’s explanations at trial, or listened to the arguments of both sides, weighing what should be the proper balance between security and liberty in counter-terrorism operations. Rather, the appeals court, like the lower court that ruled previously in the case, would toss it out because the government says the evidence is too secret and too sensitive to be made public at trial.

That would be a bad outcome — unfair to the plaintiffs and bad for the country.

The government is relying in its arguments on a powerful weapon: the “state secrets privilege,” under which courts must bar the use of evidence — or even dismiss the case — if “there is a reasonable danger that compulsion of the evidence will expose … matters which, in the interest of national security, should not be divulged.” In this case, Atty. Gen. Eric Holder filed a declaration asserting that if the government needed to defend itself, it would have to disclose the identities of subjects of Operation Flex, the reason for the investigation and some of the sources and methods used, causing “significant harm” to national security.

That certainly sounds ominous, but is it true? It is impossible to know, because the supporting information provided to the judge to back up the state-secrets claim is itself secret. Not only won’t it be part of the public record, but even the American Civil Liberties Union lawyers representing the plaintiffs are not allowed to see it or rebut it.

It is possible, of course, that the FBI’s decision to send Monteilh into the mosques was entirely reasonable, done in pursuit of a legitimate target. But it is also possible that the government hopes to avoid an embarrassing trial in which it might be found to have gone on a fishing expedition against Muslims, violating the privacy rights of people on the basis of their religion rather than their actions. If the state secrets argument prevails, we won’t know which is true.

What we do know is that the state secrets privilege has been misused in the past. Although it dates back to common law, the privilege, in its modern form, was established by the Supreme Court in a landmark 1953 case called United States v. Reynolds. In that case, the government sought to withhold evidence on grounds of national security — but 50 years later it was shown that in fact the Air Force had been trying to cover up mistakes and negligence, not legitimate state secrets.

After Reynolds, the privilege was rarely invoked until the George W. Bush administration, which dusted it off after 9/11 and used it dozens of times, far more than any previous administration. In the Bush years, people who said they had been subjected to torture, kidnapping and other mistreatment at the hands of the CIA and other branches of the U.S. government often had their cases summarily dismissed and found themselves without any opportunity to seek redress through the courts.

Although Barack Obama specifically criticized the Bush administration’s overuse of the privilege when he was a candidate, he too has invoked it in a number — too high a number — of cases since his election.

It goes without saying that the safety of Americans is extraordinarily important. But vague assertions about national security shouldn’t give U.S. officials free rein to violate the constitutional rights of citizens. The overuse of the state secrets privilege makes it too easy for the government to avoid accountability. In this particular case, it may be the government itself that harmed national security by alienating innocent Muslims and increasing their distrust of law enforcement. (It is interesting to note that when Monteilh began discussing violent jihad with people at the mosques, they reported him to the FBI.)

In reality, there are often reasonable ways to allow secret information into trials. Security clearances can be obtained for lawyers who qualify; protective orders can be issued under which lawyers are subject to massive criminal penalties if they disclose secret information. Judges can review evidence in private. There are also procedures for using classified information in trials set out in the Classified Information Procedures Act and the Foreign Intelligence Surveillance Act that could be adapted to cases like the one involving the Orange County mosques.

The state secrets privilege has been abused and overused in recent years in the name of national security. To protect civil liberties and the rule of law, it must be invoked only as a last resort.

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