Lawsuit Against FBI May Set Tone -- Muslim-Americans Say the Agency Is Hiding Documents Without Good Cause

AUGUST 27, 2010 | CIVIL RIGHTS
Lawsuit Against FBI May Set Tone
Muslim-Americans Say the Agency Is Hiding Documents Without Good Cause

By Gabe Friedman

Daily Journal Staff Writer

LOS ANGELES - Hussam Ayloush knew federal agents were keeping tabs on him, but he didn't know why.

An American citizen with no rap sheet, Ayloush heads a local branch of the Council on American-Islamic Relations. In the months and years after Sept. 11, he and a group of other influential Muslim leaders started meeting with the FBI to share tips about possible terrorist activity.

But in May 2006, Ayloush began to think he was the target of secret FBI surveillance, and when he asked to see what evidence the government was collecting on him or his group, he was rebuffed.

After filing records requests with the help of attorneys, the FBI sent Ayloush just three pages of mostly redacted information, and refused to search for more documents.

Since then, Ayloush and four other prominent Muslim-American activists have been waging a quiet battle in a Santa Ana federal court to force the FBI to disclose details about its surveillance of them and their organizations. Their lawsuit uses the Freedom of Information Act in an effort to force the FBI to more thoroughly disclose records that the bureau often argues it can keep secret for security reasons even when they are not considered classified.

"Sometimes it does feel a little like Franz Kafka's 'The Trial,'" said Mohammed Abdul Aleem, chief executive officer of non-profit website Islamicity.com, another plaintiff in the lawsuit who is seeking information. "It's about an environment of fear that has been created. It has been drummed up so much that I don't think people are able to think rationally."

Details of the long-running dispute have evaded the spotlight because the government convinced a district court judge to keep the proceedings, including the government's arguments, largely under seal - hidden even from the plaintiffs' lawyers. After that judge seemed poised to force the bureau to reveal information last year, the government appealed to the U.S. 9th Circuit Court of Appeals, where many of its filings have remained under wraps.

Ayloush and Aleem's claims are gaining new significance because their complaint is so far ahead of others like it - one is pending in San Diego and another was filed just this week by Muslim and media groups in San Francisco.

An impending appellate decision in the case could set the stage for other litigation and provide wider scrutiny of the bureau's surveillance tactics. An array of related civil rights lawsuits have been filed all over the country, including cases challenging questionable detentions of Muslim activists, surveillance of religious leaders and the infiltration of mosques by undercover informants.

The American Civil Liberties Union of Southern California, which is representing the plaintiffs, claims the case and others like it cut to the heart of whether Muslim Americans can expect the same respect for their civil rights as others in the U.S.

The appeal comes at an increasingly tense time following the fierce debate and political maneuvering around the proposal to construct an Islamic community center near ground zero in Manhattan.

Susan Akram, a professor at Boston University School of Law and expert on the Freedom of Information Act, said the appeal could have broad implications. FOIA requires the FBI to turn over almost all information with only a narrow band of exemptions, including national security, Akram said.

"This may very well be a ruling on the FOIA exemptions and what type of evidence a government agency would have to produce to justify that one of the exemptions applies," she said.

The Santa Ana case brought by Ayloush, Aleem and others has been wending its way through district court for years, mostly cloaked in secrecy. Islamic Shura Council v. FBI, 07-01088.

Most of what the FBI has collected on the activists, as well as the motivation and tactics used, has been redacted heavily, and other documents have not been turned over at all. The Department of Justice, which is representing the bureau, declined to comment on the case, spokesman Charles Miller said.

But the FBI publicly has taken the position that it withheld information about its surveillance program for various reasons, including national security concerns and to protect the privacy and identity of certain individuals.

What is known is that several of the plaintiffs in the case had a friendlier relationship with the FBI before the court battle. Aleem and Ayloush, as well as two other plaintiffs, Muzammil Siddiqi and Shakeel Syed, said they belonged to a committee composed of imams and other prominent leaders in the Muslim-American community that met monthly with the FBI starting around 2004.

In an interview, Ayloush said the idea for that group, known as the Multi-Cultural Advisory Committee, grew out of a meeting at his Anaheim office between local imams, community leaders and top FBI agents.

Ayloush said over the years he had numerous conversations with the FBI. According to one of the few documents produced by the government in the case, a conversation took place between Ayloush and an FBI field agent. It suggests the FBI was visiting him because it had heard Ayloush "instructed the community not to talk to FBI agents without an attorney present," which was described as a potential threat to the FBI's ability to obtain actionable intelligence from the community.

"At the end of the meeting, Ayloush offered to assist ... with reaching out to a broader audience within the Muslim community," the FBI memo states.

Aleem and Ayloush said the advisory committee meetings initially were well-attended by local leaders. Over the years, however, mistrust grew between the two sides and the meetings ended.

Ayloush said he thinks he was tracked by the FBI because he is vocal on a variety of issues from U.S. foreign policy in the Middle East to Arizona's new immigration law.

Aleem, whose website is one of the first devoted to Islam and features links to news items as well as information about the religion, said he is still interested in cooperating with the FBI. In 2004, he testified for the Department of Justice in a terrorism case in Idaho.

But Aleem said he stopped attending meetings because he became convinced that the FBI was not interested in a cooperative approach with the Muslim community. He said he was bothered by reports that the FBI continued to question community members about fundraisers, particular sermons, and political views.

For example, one former FBI informant Craig Monteilh, a convicted felon, was acting as an agent provocateur, showing up in mosques and trying to instigate criminal acts, they alleged. Monteilh is suing the FBI for alleged civil rights violations, claiming the bureau conspired to have him arrested for grand theft.

After receiving complaints from community members, Ayloush and the other plaintiffs asked the FBI for any files pertaining to themselves under the federal Freedom of Information Act in May 2006.

Six non-profit organizations joined the request, including the Islamic Shura Council of Southern California, Council on American-Islamic Relations of California, Islamic Center of San Gabriel Valley, Islamic Center of Hawthorne, West Coast Islamic Center and Human Assistance and Development International.

After a back-and-forth exchange, the FBI produced a three-page memo related to Ayloush and one page related to his organization, but did not produce any documents for the remaining nine plaintiffs, and informed their lawyers at the ACLU that their only recourse was to seek judicial review, according to court documents.

Following the lawsuit, the FBI eventually produced 124 more pages of documents on the other nine defendants and 32 pages related to the Multi-Cultural Advisory Committee, which were heavily redacted.

Those redactions were haphazard and inconsistent, the ACLU contends.

"My hope is that we'll establish guidelines in this case that benefit not only this FOIA request, but also other FOIA requests involving Muslim communities," said Ahilan Arulanantham, a lawyer at the ACLU of Southern California. "We think these documents will show the FBI is surveilling Muslim-Americans for completely legitimate activity protected by the First Amendment."

The government must give a reason for why such material is redacted. The most common explanation provided was that the passages were "outside the scope" of the request, rather than classified information or key to national security.

That justification seemed to lose favor with U.S. District Judge Cormac J. Carney, who is presiding over the case and called it a matter of significant "public interest."

Although Carney has held much of the proceedings via in camera hearings - where only the FBI's lawyers were present - the fact that the government appealed his May 2009 ruling shows the judge is leaning toward disclosure, unless the appellate court steps in.

The appellate court has been fully briefed on the case, lawyers said, but allowed the FBI to lay out the legal rationale for its stance in briefs with large portions redacted or under seal. A hearing is expected soon.

For its part, the FBI appears to have argued that disclosing information about its surveillance sets a dangerous precedent, eroding its ability to covertly gather information.

In a portion of the FBI's appellate brief that was not filed under seal, its lawyers stated that even though publishing Carney's decision would not reveal classified information, there are compelling reasons to keep it secret. The courts "give special deference to the Executive Branch when it invokes national security concerns," the brief said.

Carney appeared skeptical of heavy redactions, noting that some documents were entirely blank except for the plaintiff's name and a brief sentence. The judge, known as a conservative with an independent streak who was appointed by President George W. Bush, also questioned the FBI's rationale for withholding documents, calling it "mistaken" to argue the plaintiffs failed to exhaust their administrative remedies before filing suit.

"The FBI failed to perform a sufficient search," he wrote in an April 2009 ruling.

If the court orders more transparency, Ayloush hopes it will highlight whether the FBI should interview people about their political views.

"The main goal of our suit is to eventually help the FBI respect our community," he said. "You can't have this partnership if you're treating your partner as a suspect."

gabe_friedman@dailyjournal.com
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