FBI’s records on surveillance of Muslims can remain secret

A federal appeals court on Thursday overturned a ruling by a judge in San Francisco that would require the FBI to release documents describing its efforts to keep watch on Muslims in Northern California and recruit informants from the Muslim community.

The writings were sought in a 2010 lawsuit by the American Civil Liberties Union, the Asian Law Caucus and the Bay Guardian newspaper. They said they wanted to know whether the FBI was using educational and “community outreach” programs to infiltrate Muslim institutions and conduct surveillance without evidence of criminal activity.

The federal agency turned over more than 50,000 pages of documents, some of which showed that its agents in San Francisco had taken notes on the viewpoints and religious activities of Muslims they encountered from 2004 through 2010. But the FBI deleted material from some of those documents and withheld more than 47,000 additional pages, saying the information was protected because it had been compiled for “law enforcement purposes.”

U.S. District Judge Richard Seeborg ordered

the disclosure in 2015, saying the FBI had failed to specify any particular law it was trying to enforce. But the Ninth U.S. Circuit Court of Appeals in San Francisco said Thursday that a government agency doesn’t have to be that specific when a member of the public is seeking information about its guidelines and general practices.

Instead, the FBI must show only a rational connection “between the withheld document and its authorized law enforcement activities,” Judge Andrew Hurwitz said in the 3-0 ruling. At that point, he said, Seeborg would have to examine the document and decide whether its release would cause one of the harms listed as an exemption in the law, like exposing the agency’s methods or a confidential source.

Among the documents at issue is an FBI memo about recruiting and handling confidential informants. One section was labeled “Immigration vulnerabilities,” with the details mostly blacked out. ACLU lawyer Julia Harumi Mass, speaking after the earlier ruling, said the title appeared to refer to the FBI’s past practice of using the prospect of deportation as a tool to recruit informants.

The ACLU said it also obtained a 2008 FBI “Counterterrorism Textbook” that described Islam as inherently violent.

“Many documents released to date have been blatantly Islamophobic,” Christina Sinha, an attorney with the Asian Law Caucus, said Thursday. She said the court ruling was disappointing but “not a total defeat for transparency” and that the organizations still hope to gain release of more FBI documents.