Fazaga v. Fed. Bureau of Investigation

• Decision Date: 14 August 2012
• Docket Number: Case No. 8:11–cv–00301–CJC(VBKx).
• Citation: 884 F.Supp.2d 1022
• Court: U.S. District Court — Central District of California
• Parties: Yassir FAZAGA, Ali Uddin Malik, Yasser Abdelrahim, Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

884 F.Supp.2d 1022

Yassir FAZAGA, Ali Uddin Malik, Yasser Abdelrahim, Plaintiffs,

v.FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

Case No. 8:11–cv–00301–CJC(VBKx).

United States District Court,

C.D. California,

Southern Division.

Aug. 14, 2012.

Ahilan T. Arulanantham, Jennifer L. Pasquarella, Peter Bibring, ACLU Foundation of Southern California, Los Angeles, CA, Ameena Mirza Qazi, Council on American Islamic Relations—Greater Los Angeles, Anaheim, CA, Dan Stormer, Joshua Piovia–Scott, Reem Salahi, Hadsell Stormer Richardson & Renick LLP, Pasadena, CA, for Plaintiffs.

Anthony Joseph Coppolino, Lynn Y. Lee, Stephen E. Handler, W. Scooter Slade, U.S. Department of Justice, Annie L. Owens, Carl J. Nichols, Howard M. Shapiro, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, DC, Brian R. Michael, Katie Moran, Peiyin Patty Li, Wilmer Cutler Pickering Hale & Dorr LLP, Alexander H. Cote, Amos Alexander Lowder, Angela Machala, David C. Scheper, Scheper Kim & Harris LLP, Los Angeles, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS BASED ON THE STATE SECRETS PRIVILEGE

CORMAC J. CARNEY, District Judge.

I. INTRODUCTION

The present case involves a group of counterterrorism investigations by the Federal Bureau of Investigation (“FBI”), dubbed “Operation Flex,” in which the FBI engaged a covert informant to help gather information on certain, unidentified individuals from 2006 to 2007. Although some of the general facts about Operation Flex, including the identity of one informant, Craig Monteilh, have been disclosed to the public, much of the essential details of the operation remain classified. After disclosure of Monteilh's identity, Plaintiffs, three Muslim residents of Southern California, filed a putative class action against the FBI, the United States of America, and two FBI officers sued in their official capacities (together, the “Government”) as well as five FBI agents sued in their individual capacities (collectively, “Defendants”). Plaintiffs allege that Defendants conducted an indiscriminate “dragnet” investigation and gathered personal information about them and other innocent Muslim Americans in Southern California based on their religion. In doing so, Plaintiffs allege that Defendants violated their constitutional and civil rights under the First Amendment Free Exercise Clause and Establishment Clause, the Religious Freedom Restoration Act (“RFRA”), the Fifth Amendment Equal Protection Clause, the Privacy Act, the Fourth Amendment, the Foreign Intelligence Surveillance Act (“FISA”), and the Federal Tort Claims Act (“FTCA”). Defendants currently move to dismiss Plaintiffs' claims and for summary judgment pursuant to Federal Rules of Civil Procedure 12 and 56 on various grounds, including the state secrets privilege. Defendants argue that all of Plaintiffs' claims, aside from their FISA and Fourth Amendment claims, must be dismissed because litigation of those claims would risk or require disclosure of certain evidence properly protected by the Attorney General's assertion of the state secrets privilege.

The Attorney General's privilege claim in this action requires the Court to wrestle with the difficult balance that the state secrets doctrine strikes between the fundamental principles of liberty, including judicial transparency, and national security. Although, as the Ninth Circuit aptly opined, “as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them.” Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1073 (9th Cir.2010), cert. denied,––– U.S. ––––, 131 S.Ct. 2442, 179 L.Ed.2d 1235 (2011). “On those rare occasions, we are bound to follow the Supreme Court's admonition that ‘even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.’ ” Id. (quoting United States v. Reynolds, 345 U.S. 1, 11, 73 S.Ct. 528, 97 L.Ed. 727 (1953)). Such is the case here. After careful deliberation and skeptical scrutiny of the public and classified filings, the Court concludes that Plaintiffs' claims against Defendants, aside from their FISA claim, must be dismissed under the state secrets privilege.¹ Further litigation of those claims would require or unjustifiably risk disclosure of secret and classified information regarding the nature and scope of the FBI's counterterrorism investigations, the specific individuals under investigation and their associates, and the tactics and sources of information used in combating possible terrorist attacks on the United States and its allies. The state secrets privilege is specifically designed to protect against disclosure of such information that is so vital to our country's national security.

II. BACKGROUND

The central subject matter of this case is a group of counterterrorism investigations by the FBI, known as “Operation Flex,” which focused on fewer than 25 individuals and “was directed at detecting and preventing possible terrorist attacks.” (Pub. Giuliano Decl. ¶ 11.) During the investigations, the FBI utilized Craig Monteilh as a confidential informant from 2006 to 2007. ( Id. ¶¶ 6, 11.) “The goal of Operation Flex was to determine whether particular individuals were involved in the recruitment and training of individuals in the United States or overseas for possible terrorist activity.” ( Id. ¶ 11.) Plaintiffs allege that as part of Operation Flex, Defendants directed Monteilh to infiltrate mosques and indiscriminately collect information about Plaintiffs and other members of the Los Angeles and Orange County Muslim community because of their adherence to and practice of the religion of Islam from July 2006 to October 2007. (First Amended Complaint (“FAC”) ¶¶ 1–3, 86, 167.)

The FBI has only acknowledged that Monteilh engaged in confidential source work and disclosed limited information concerning Monteilh's actions. (Pub. Giuliano Decl. ¶ 6.) For example, in an unrelated criminal proceeding in this district, United States v. Niazi, Case No. 8:09–cr–28–CJC(ANx), the FBI disclosed to the defendant Ahmadullah Niazi the content of the audio and video recordings containing conversations between him and Monteilh and others. ( Id. ¶ 12.) The FBI also acknowledged in the Niazi case that Monteilh provided handwritten notes to the FBI and that it produced certain notes provided by Monteilh concerning Niazi. ( Id.) ² However, essential details regarding Operation Flex and Monteilh's activities have not been disclosed, and the Government asserts that this information “remains highly sensitive information concerning counterterrorism matters that if disclosed reasonably could be expected to cause significant harm to national security.” ( Id. ¶ 6.) The allegedly privileged information includes (i) the identities of the specific individuals who have or have not been the subject of counterterrorism investigations, (ii) the reasons why individuals were subject to investigation, including in Operation Flex, and their status and results, and (iii) the particular sources and methods used in obtaining information for counterterrorism investigations, including in Operation Flex. (Holder Decl. ¶ 4; Pub. Giuliano Decl. ¶ 6.) The Government provides a more fulsome discussion of the nondisclosed matters in its ex parte, in camera materials that include two classified declarations and a classified supplemental memorandum. (Dkt. Nos. 35, 36, 56.)

A. The Parties

Plaintiffs, Sheikh Yassir Fazaga, Ali Uddin Malik, and Yasser AbdelRahim (collectively, “Plaintiffs”), are resident members of the Muslim community in Southern California. (FAC ¶¶ 12–14.) Fazaga, a U.S. citizen born in Eritrea, has served as an “imam” or religious leader of the Orange County Islamic Foundation (“OCIF”), a mosque in Mission Viejo, California, and has lectured widely on topics of Islam and American Muslims. ( Id. ¶¶ 12, 55–56.) Malik, a U.S. citizen born in Southern California, is a resident of Orange County and has regularly attended religious services at the Islamic Center of Irvine (“ICOI”), a mosque in Irvine, California. ( Id. ¶¶ 13, 68–69.) AbdelRahim, a U.S. permanent resident from Egypt, has regularly attended religious services at the ICOI. ( Id. ¶¶ 14, 80.)

The Government Defendants consist of the FBI and the United States of America as well as Robert Mueller, Director of the FBI, and Steven M. Martinez, Assistant Director in Charge of the FBI Los Angeles Field Office, sued in their official capacities. ( Id. ¶¶ 15–17, 255.) Defendants also include five FBI agents, Kevin Armstrong, Paul Allen, J. Stephen Tidwell, Barbara Walls, and Pat Rose (collectively, “Agent Defendants”), who are sued in their individual capacities. ( Id. ¶¶ 18–22.) Defendants Armstrong and Allen, who were both assigned to the Orange County area, were handlers for Monteilh and allegedly directed Monteilh to gather information on the Muslim community in Orange County and also supervised his purported surveillance activities. ( Id. ¶¶ 18–19, 87.) Defendant Rose, who was assigned to the FBI's Santa Ana branch office, supervised the FBI's Orange County national security investigations and directly supervised Allen and Armstrong. ( Id. ¶ 22.) Defendant Walls, the head of the FBI's Santa Ana branch office, directly supervised Allen, Armstrong, and Rose. ( Id. ¶ 21.) Defendant Tidwell served as the Assistant Director in Charge of the FBI's Los Angeles Field Office from August 2005 to December 2007, and in that capacity, supervised operations in the Central District of California. ( Id. ¶ 20.) Plaintiffs allege Tidwell authorized the selection of Monteilh as an informant and directed the actions of Armstrong, Allen, Rose, Walls, and other agents in the handling of Monteilh. ( Id.)

B. Operation Flex³

Plaintiffs allege many disturbing facts about Operation Flex and wrongdoing by Defendants. Sometime prior to July 2006, Plaintiffs allege that the...