You Have the Right to Remain Spied On

http://www.aclu.org/blog/national-security/you-have-right-remain-spied

From the term “state secrets,” you might think the case involved spies, hush-hush arrangements with foreign governments, or people detained at secret foreign prisons – as some state secrets cases do. But this one involves the FBI’s investigation into law-abiding U.S. citizens and residents in Orange County, California, called “Operation Flex.” In June 2006, FBI agents recruited Craig Monteilh, a man with a file full of felony convictions, to pose as a convert to Islam at one of the largest mosques in the area. The FBI paid Monteilh to spend the next fourteen months meeting as many members of the Muslim community as he could. He made audio recordings of every interaction, as he gathered names, telephone numbers, e-mails, political and religious views, travel plans, and other information on hundreds of individuals in the Muslim community. According to Monteilh’s own sworn statement, he was told to pay special attention to community leaders and those who seemed especially devout.

The absurdity – and illegality – of Operation Flex were well documented this week on the radio show This American Life. When asked if the FBI had particular targets in the Muslim community that they wanted to have investigated, Monteilh said, “No. They said the targets would come to me.” In other words, Operation Flex was a fishing expedition that targeted people because of their religion. But in the end, after Monteilh began incessantly about jihad and violence, members of the community did exactly what you’re supposed to do: they reported him to the FBI. After hundreds of hours of Monteilh’s time and thousands of taxpayer dollars “Operation Flex” resulted in zero criminal convictions. No one was ever even charged with a terrorism offense.

According to the district court, we’ll never be allowed to know whether the FBI violated the Constitution when they authorized Operation Flex because it would require the disclosure of state secrets. Because the state secrets privilege essentially gives the government a blank check to halt a lawsuit in its tracks, it is currently under fire in Congress. “The ongoing argument that the state secrets privilege requires the outright dismissal of a case is a disconcerting trend in the protection of civil liberties for our nation,” said Representative Jerrod Nadler (D-New York), who earlier this summer introduced a bill to limit state secrets in favor of less drastic alternatives. The privilege also has a troubling history. One of the first modern cases to apply the privilege relied on it to dismiss a suit against the government over the crash of a military plane because of the secrets in the accident report. But decades later, the daughter of one of the pilots discovered that the accident report wasn’t secret at all, and described only negligence — human errors that were embarrassing to the government.