9th Cir­cuit re­vives Mus­lims’ spy­ing law­suit against FBI

The Tribune (SLO) - - Espresso - BY MAURA DOLAN

A fed­eral ap­peals court de­cided unan­i­mously Thurs­day to re­vive much of a pro­posed class ac­tion law­suit brought by South­ern Cal­i­for­nia Mus­lims against the FBI, charg­ing they were sub­jected to surveil­lance be­cause of their re­li­gion. The de­ci­sion by the U.S. 9th Cir­cuit Court of Ap­peals will re­turn the case to a dis­trict court for fur­ther re­view.

The law­suit, filed by the ACLU of South­ern Cal­i­for­nia, charged that for at least 14 months in 2006 and 2007, the FBI paid a con­fi­den­tial in­for­mant to spy on Mus­lims in South­ern Cal­i­for­nia’s mosques and else­where.

The in­for­mant used au­dio and video equip­ment to se­cretly record Mus­lims at var­i­ous places, in­clud­ing at places of prayer, pri­mar­ily in Orange County.

The op­er­a­tion was part of a coun­tert­er­ror­ism in­ves­ti­ga­tion known as Op­er­a­tion Flex. The Mus­lim com­mu­nity con­tended it amounted to “drag­net surveil­lance” whose pur­pose was to in­dis­crim­i­nately “gather in­for­ma­tion on Mus­lims.”

The FBI con­tended the op­er­a­tion was in­tended to pre­vent ter­ror­ist acts and fo­cused on fewer than 25 peo­ple.

A fed­eral judge dis­missed the bulk of the law­suit in 2012 af­ter the govern­ment ar­gued it could not de­fend it­self with­out dis­clos­ing state se­crets.

In a 103-page de­ci­sion, the 9th Cir­cuit said the dis­trict court should not have dis­missed claims based on state se­crets with­out more re­view.

“The le­gal ques­tions pre­sented in this case have been many and dif­fi­cult,” Judge Mar­sha S. Ber­zon wrote for the court, and “will re­ver­ber­ate in the con­text of the larger on­go­ing na­tional con­ver­sa­tion” about how to re­spond to threats of ter­ror­ism “with­out fu­el­ing a cli­mate of fear rooted in stereo­types and dis­crim­i­na­tion.”

The govern­ment’s con­tention that the suit can­not be de­fended with­out dis­clos­ing mat­ters of na­tional se­cu­rity “does not war­rant dis­missal of this lit­i­ga­tion in its en­tirety,” the court said.

The 9th Cir­cuit said the dis­trict court should de­ter­mine whether the elec­tronic surveil­lance was “law­fully au­tho­rized and con­ducted” and whether it vi­o­lated the Mus­lims’ con­sti­tu­tional rights.

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