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Landmark Ninth Circuit Ruling in Fazaga v. FBI Permits Courts to Review Unlawful Surveillance of Muslims

By Lisa Keller of Hadsell Stormer & Renick LLP posted in Civil Rights on Wednesday, March 6, 2019.

Fazaga v. FBI was brought in 2011 by the ACLU Foundation of Southern California, the Council for American-Islamic Relations of Greater Los Angeles (CAIR), and the law firm Hadsell Stormer & Renick LLP on behalf of attendees of the Islamic Center of Irvine, a mosque in Orange County.

Dan Stormer, partner at Hadsell Stormer & Renick LLP, commented, "Today's ruling puts to bed the government's building of a Kafka-esque wall preventing our clients from having their day in court. After tearing down this wall, we look forward to the day we secure justice for Orange County's Muslim community."

Starting in 2006, an FBI informant, pretending to convert to Islam, infiltrated the mosque and gathered information about attendees -- specifically because they were Muslim. Plaintiffs claim that he illegally surveilled them for more than a year, although they had done nothing to warrant such intrusion.

The government, invoking terrorism and national security issues, claimed that "state secrets" barred plaintiffs from pursuing a class action suit against the FBI.

The February 28th, ruling allows plaintiffs to seek injunctive relief through the Foreign Intelligence Surveillance Act (FISA). Plaintiffs also may force the government to delete illegally collected information about them, and seek monetary damages for the FBI's intrusion of their homes and offices.

"The legal questions presented in this case have been many and difficult," the judges wrote in the ruling. "We answer them on purely legal grounds, but of course realize that those legal answers will reverberate in the context of the larger ongoing national conversation about how reasonably to understand and respond to the threats posed by terrorism without fueling a climate of fear rooted in stereotypes and discrimination."

Ahilan Arulanantham, senior counsel at the ACLU SoCal said, "The Ninth Circuit's decision is a victory for everyone who believes in the rule of law. It rejects the government's request that the courts close their eyes to this shameful chapter of FBI surveillance of Muslims because it was a 'state secret.'"

"Muslims in this country deserve the same freedom(s) that protect all other religious groups: the right to practice their faith in peace without fear of government intrusion, said Yassir Fazaga, president of the Orange County-based Tanweer Institute and lead plaintiff in the case. "We therefore applaud the Ninth Circuit for its holding that Muslims can challenge the government when being subjected to illegal surveillance."

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