‘Who Else Is Spying on Me?’ Muslim Americans Bring the Fight Against Surveillance to the Supreme Court

Imam Yassir Fazaga remembers the panic he felt. He remembers opening up the electrical sockets in his office and searching behind his computer monitor, looking for recording devices. In conversations with congregants, especially unfamiliar ones, he had doubts. “Who else is an informant? Who else is spying on me?” he recalls thinking.

It was the mid-2000s, and Fazaga had just learned that in the years after 9/11, the FBI had sent a man to spy on the community at his mosque in Mission Viejo, Calif., where Fazaga was the religious leader. The informant, a man with a criminal history who had worked for the FBI for years, had recorded hundreds of hours of audio and video conversations and helped the bureau listen in on private conversations between congregants and their spiritual advisors, according to allegations made in court documents. He’d even gone so far as to propose to two other community members that “we should bomb something.”

In the aftermath of 9/11, the Patriot Act and other government measures vastly expanded the bureau’s authority to surveil Americans, and it reportedly increased its use of informants to record numbers in the decade after the attacks. Of the more than 970 terrorism defendants prosecuted by the DOJ since 9/11, more than one third were caught up in FBI stings; and about 300 of those cases involved the use of informants, according to the Intercept. State and local law enforcement groups also got much more aggressive in their methods post-9/11. In 2018, the New York Police Department settled a lawsuit that accused it of illegally infiltrating student groups and mosques in a program that ran from around 2002 to 2014—an endeavor that the NYPD acknowledged led to no credible intelligence leads.

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It’s impossible to know the full extent of the post-9/11 surveillance apparatus, in part because many programs remain secret, but civil rights groups say Muslims were unfairly targeted because of their religion. “We were all deemed as suspects until proven innocent,” says Hussam Ayloush, the head of the Council on American-Islamic Relations’ Los Angeles branch. “We were all deemed as guilty until proven innocent.” Recent studies, including a 2019 survey of FBI activity in Southern California, suggest law enforcement agencies target Muslim American communities in a discriminatory way by predominantly asking questions about their religious practices or mosques in interviews at their homes. And for many Muslim Americans, the post-9/11 increase in government surveillance has combined with the well-documented spike in Islamophobic incidents against them to unsettling effects. In a 2017 Pew Survey of U.S. Muslims, about half reported that they believe their fellow citizens view them as anti-American and that they experienced at least one incident of discrimination in the year before taking the survey.

The combination of overt discrimination and government-backed surveillance exacts a particular cost on many Muslim Americans, leaving them with a sense of vulnerability and suspicion, and the feeling that they are answering for an act of terrorism they had nothing to do with merely because of their religious beliefs. That, many Muslim Americans say, feels like a curtailing of their religious liberty and their freedom from unwarranted government intrusion. “It’s not the fear of what they might find out,” says Fazaga, reflecting on his brush with the informant. “It’s the fact that you’re violated—and you’re violated in the place where you are supposed to feel the safest.”

As the 20th anniversary of the 9/11 attacks fades into memory and many Americans go back to what they may view as an acceptable balance between sacrifices of civil liberties and security, for many Muslim Americans, a struggle that began two decades ago continues—partly in the courts. In December 2020, after four Muslim American men accused the FBI of using their placement on the no-fly list to pressure them into becoming informants, the U.S. Supreme Court ruled in Tanvir v. Tanzin that individuals can sue federal law-enforcement officials for damages under a law that protects religious rights. This November, Fazaga will get his own day in front of the high court. At stake may be the chance to learn the truth about post-9/11 surveillance of Muslim Americans and others the government has monitored.

In 2011, Fazaga and two Muslim congregants sued the FBI, with help from the Council on American-Islamic Relations and the ACLU, alleging the Bureau had paid the informant to gather intel on Fazaga’s congregation and other Muslims in Southern California because of their religious identity. The FBI has said in court filings that part of its investigation is a “state secret” and that the case “cannot be litigated without posing an unacceptable risk to national security.” Whether the state secret privilege is valid in this case is what the Supreme Court will decide in November, in FBI v. Fazaga.

But the bureau’s arguments in the Fazaga case are sometimes troubling on their face. The FBI has said in legal filings that “since the court cannot hear evidence as to who the FBI investigated or why, it cannot adjudicate whether the government targeted Plaintiffs based on their religion.” Civil libertarians have long argued that the U.S. government has abused the state secrets defense to dismiss legitimate concerns about its behavior, particularly as it relates to warrantless surveillance and retaliating against whistleblowers. Fazaga’s lawyers say that if the Supreme Court agrees that even the highest court in the land cannot review the evidence, it sets a dangerous precedent. “The message… is that the courthouse doors are closed if the government views your community as a national security threat,” says Ahilan Arulanantham, former legal director for the ACLU of Southern California and a member of Fazaga’s legal team.

For Fazaga, whose encounter with the informant shook him and his congregation, something even more fundamental is at stake: the intangible bonds created by a community of shared belief. “Not only did it break the trust between the community and the FBI,” Fazaga says, “it broke the trust within the community.” The FBI’s efforts to keep the nature and extent of its surveillance secret, he says, only makes that distrust worse. If the Supreme Court agrees that even it cannot review the evidence, Fazaga says it would make a chilling statement: “We’re going to surveil you. We can’t tell you why. We can’t tell your lawyer why. We can’t even tell a judge why.”

In 2006, Hussam Ayloush began receiving concerning phone calls from Muslim community members across Southern California. The executive director of CAIR’s Los Angeles branch heard citizen after citizen describe how a fitness consultant named Farouk al-Aziz was chatting up young men at local mosques, giving them workout tips on how to bulk up and asking “strange questions” about jihad. By the following summer, Ayloush received a report from two community members that al-Aziz suggested they should bomb something.

Ayloush called the head of the FBI’s Los Angeles office at the time and said he believed there was a terrorist in the community that they should investigate. But the official’s tone quickly changed—and he was about to hang up the phone even before Ayloush told him al-Aziz’s full name or address. “There was something fishy,” Ayloush says. When the FBI didn’t immediately arrest al-Aziz in the weeks following the phone call, Ayloush grew suspicious about whether he was an informant.

As it turned out, Ayloush was right: he had reported an FBI informant to the FBI. Al-Aziz’s real name was Craig Monteilh. A longtime informant for the bureau, who had served time for fraud, Monteilh had been sent to pose as a convert at more than half a dozen mosques in Southern California between July 2006 and October 2007, according to court documents in the case later brought by Fazaga. The bureau called Monteilh’s endeavor “Operation Flex,” a nod to him conducting informant work in gyms under the cover of working as a trainer. Monteilh, who later had a falling out with the FBI, provided testimony as a witness to the ACLU and Fazaga in their case in 2010 and 2011.

Monteilh confirmed in his testimony that one of the mosques he targeted was the Orange County Islamic Foundation in Mission Viejo, where Fazaga worked and which the FBI, per Monteilh, described as a “definite hotspot.” Monteilh testified that his FBI handlers considered Fazaga to be radical because he “directed students on how to conduct demonstrations and encouraged them to speak out.” Monteilh said the bureau’s officers also highlighted how Fazaga had publicly pressed the head of the FBI’s L.A. office when that official denied in a 2006 community meeting that the agency was spying on Muslims, saying he did not believe him. Monteilh told the court, “I never observed anything that gave me any reason to believe that Fazaga or any of the congregants or leadership of OCIF were involved in violence or terrorism in any way.”

Monteilh said that his handlers told him to record everything, without any limitations. “My handlers did not give me any specific targets, but instead told me to gather as much information on as many people in the Muslim community as possible,” he told the court. Monteilh said he was also encouraged to identify anyone who studied Islamic law, openly criticized U.S. foreign policy, was an imam or sheikh, went on a holy pilgrimage to Hajj or played a leadership role in the mosque or Muslim community. He also testified that as a result of the FBI’s guidance, he “had sexual relationships with women in the Muslim community for the purposes of information gathering.”

Monteilh told NPR in 2012 that he had suggested to two congregants that we “should bomb something.” Asked about the incident by TIME, he denied possessing a bomb or talking about specific targets with the congregants. Monteilh says he has no regrets about Operation Flex. “I don’t like how civil rights were violated,” he says, “but I believed it was a necessary evil.” The mission was important to gain valuable intel, he says. Still, he adds that the case is a demonstration of how “state secrets has been abused as a trump card to get cases dismissed on a high level.”

The FBI declined to comment on the case for this story, citing pending litigation.

When worshippers learned around early 2009 that Monteilh had infiltrated their communities, many pulled back from group activities or became more reserved in their interactions at their mosques, Ayloush says. Fazaga became skeptical when congregants would approach him to talk. “I would wonder if this is a genuine question—somebody really wanting to know about these topics—or if this is just somebody trying to get me to say stuff,” he says. The constant distrust was exhausting. “It sucks the life out of you.”

Having first denied that they monitored Muslims, then admitting that Monteilh was working for them, in 2009, FBI officials tried to distance themselves from the case, saying Monteilh’s work was not representative of their relationship with the Muslim community. But the impact of the FBI and Monteilh’s actions reached far beyond the congregants who encountered the informant firsthand. Ayloush notes that when Monteilh’s story spread throughout Orange County, it had a chilling effect on the way that many members of the Southern California Muslim community conducted themselves in public. He recalls hearing from dozens of parents who said they felt uneasy about their children being politically active or even joining Muslim Student Associations on college campuses, and says that many imams were warned against discussing social justice issues in their sermons by their boards of directors. Fazaga and Ayloush noted that it also took longer for new converts to gain the trust of community members, as they were initially viewed with suspicion. “​​People who stopped coming to the mosque, they didn’t tell us—they just disappeared,” Ayloush says. “People were afraid.”

Over the years, a few cases of suspected surveillance discrimination by law enforcement against Muslims have received widespread public attention. Monteilh was the subject of an episode of This American Life in 2012, and an AP investigation of the NYPD spying on Mosques won a Pulitzer Prize in 2012.

Research suggests the problem is widespread. A 2019 sociological study by Prof. Sabrina Alimahomed-Wilson of California State University at Long Beach analyzed 113 cases of FBI contact—mostly home visits—with Muslim Americans living in Los Angeles from 2006 to 2010. The study found that FBI agents predominantly asked them questions about religious practices or their affiliation with religious organizations, which led Alimahomed-Wilson to conclude that “the FBI faultily presumes that Muslim ties to their community and faith is abnormal, and worthy of state surveillance.” The study found that “every day, normal behavior becomes suspicious when practiced by U.S. Muslims.” The FBI did not respond to a request to comment on the study.

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Muslim Americans have sought to respond to post-9/11 surveillance in different ways. Some are educating each other about the best ways to navigate potentially fraught interactions with FBI agents. Since 2009, Ramzi Kassem, a law professor at the City University of New York, has run the Creating Law Enforcement Accountability & Responsibility (CLEAR) clinic, which provides legal support and guidance to Muslim and Black communities nationwide who have been targeted by law enforcement as part of national security and counterterrorism programs. When he asks participants if they have been approached for questioning by the FBI or know someone who has, Kassem says, “Almost all the hands in the room will shoot up.” Participants describe being asked about everything from what imams and congregants are talking about at their mosques to their opinions on U.S. involvement in Afghanistan and Syria, Kassem says.

For individuals impacted by invasive surveillance practices, the damage can be long lasting. Naveed Shinwari, who was born in Afghanistan and has lived in the U.S. since 1998, was among four Muslim men who successfully sued the FBI and DOJ in the 2013 Tanvir v. Tanzin case, alleging the government had used the no-fly list in an attempt to coerce them into becoming informants. Shinwari says the FBI interrogated him about whether he had any ties to “bad guys” and questioned his religious activities in the U.S., all while telling him that they could “help [him] if he helped them.” “All too often in the eyes of the FBI, if you’re a Muslim, then you are a target,” says Kassem, the CUNY law professor, who argued Tanvir v. Tanzin before the Supreme Court. “You’re either a target for surveillance, or you’re a target for recruitment as an informant.”

As a result of being on the no-fly list, Shinwari couldn’t visit his wife in Afghanistan for 26 months and started isolating himself more than usual. “I just stayed away from everyone because I felt like everyone was an informant. There was a lot of paranoia,” Shinwari says. For years after his encounters with the FBI, Shinwari says he would write down the license plate numbers of cars that passed by to make sure he wasn’t being followed. Even today, he finds himself questioning new people he meets at his Nebraska mosque and he worries that he could encounter an informant trying to set him up in retaliation for suing the FBI.

For Fazaga, that fear is exacerbated by the FBI’s attempt to prevent the full details of their surveillance of his community from becoming public by invoking the state secrets privilege. Since 9/11, the government’s use of the privilege has increased dramatically. During the presidency of George W. Bush, the government began applying it not only to specific documents and items of evidence but also to whole categories of activities, says David Pozen, a law professor at Columbia University and expert on government secrecy. A report Pozen helped author as a staffer for Sen. Ted Kennedy in 2008 found that the Bush administration raised the privilege in over 25% more cases per year than previous administrations had, and had sought dismissal in over 90% more cases.

Fazaga says that expansion has chilled religious freedom in his community and beyond. While he still tries to be open and continues to discuss social justice issues in his sermons, now as an imam in Tennessee, he says he always talks on the phone as if he is being listened to. The experience with Monteilh—and the distrust it engendered—is not something he can leave behind. “No matter where you go,” he says, “this is something that you carry with you.”