Secrecy & Leaks

New State Secrets Assertion

By Benjamin Wittes
Tuesday, August 2, 2011, 8:36 AM

Josh Gerstein at the Politico is reporting:

The Obama administration is invoking the state secrets privilege to seek dismissal of part of a lawsuit brought by Muslims who claim that the FBI conducted sweeping unconstitutional surveillance of Southern California mosques and those who practice Islam in the region.

Attorney General Eric Holder said in papers filed Monday with the U.S. District Court in Orange County that the suit's broad claims of impermissible religious bias by the FBI must be dismissed because allowing them to be litigated would require the disclosure of sensitive national security information.

"Disclosure of the reasons for and substance of a counterterrorism investigation—whether the initial predicate for opening an investigation, information gained during the investigation, or the status or results of the investigation—could reasonably be expected to cause harm to national security," Holder wrote in a declaration signed Friday. "Such disclosures would reveal to subjects who are involved in or are planning to undertake terrorist activities what the FBI knows and does not know about their plans and the threat they pose to national security."

The state-secrets claims came in a lawsuit the American Civil Liberties Union and the Council on American-Islamic Relations brought in February on behalf of three Muslims—two Americans and one Egyptian national living in California. The suit followed revelations that an FBI informant, Craig Monteilh, infiltrated a mosque in Irvine, Calif. Monteilh allegedly made audio and video recordings, left behind listening devices, and collected phone numbers and e-mail addresses from mosque attendees. He drew suspicion by regularly attempted to engage them in discussions about violent jihad, the lawsuit says.

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(The government's arguments against the suit can be viewed here and Holder's declaration on state secrets is posted here.)