Obama admin. asserts state secrets 
privilege to dismiss Muslims' suit

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 attempting to engage them in discussions about violent jihad, the lawsuit says.

The government filings Monday said the portion of the case pertaining to Monteilh's actions could likely be litigated without invoking the state secrets privilege, but the broader claim of religious discrimination in FBI investigations in the region should be dismissed.

During the 2008 campaign, then-Sen. Barack Obama's campaign criticized the Bush administration for excessive secrecy and for its repeated invocation of the state secrets privilege.

In 2009, Holder set up a new process to review state secrets claims.

However, the Obama administration has persisted in the Bush Justice Department's privilege claims in several suits relating to the so-called warrantless wiretapping program and the practice of extraordinary rendition of prisoners from one foreign country to another.

The Obama administration has rarely invoked the controversial privilege in new cases, although not every case may be known because in some instances the lawsuits themselves may be secret.

Obama's Justice Department did invoke the privilege last year against a lawsuit brought over reported efforts by the U.S. to use drones to kill alleged Al Qaeda of the Arabian Peninsula leader Anwar Al-Awlaki, an American citizen believe to be living in Yemen.

A judge ultimately dismissed the suit on other grounds.

Now, in the California Muslims' suit, the administration has invoked the privilege in a new case for at least the second time.

Monteilh eventually had a falling out with the FBI.

He filed suit against the feds and local authorities last year, saying they encouraged him to engage in illegal activities and exposed his identity as an informant.

There was no state secrets claim in that case.

In February, a judge dismissed Monteilh's claims against the FBI and an FBI agent, but the case is continuing against local police officials.

Update: A Justice Department spokeswoman just sent over a statement explaining Holder's decision to assert the state secrets privilege in the case.

"The decision to narrowly invoke the privilege in this case was made following a thorough, multi-stage review process that was designed to provide greater accountability for the use of the privilege and to ensure that the department invokes it only to the extent that it is absolutely necessary to protect national security," DOJ spokeswoman Tracy Schmaler said.

"Officials specifically looked for a way to allow this case to proceed while carving out national security information, and concluded that some information about the allegations could be made available without compromising sensitive national security information."

Schmaler stressed that DOJ does not condone religious discrimination.

"“The department and the FBI do not tolerate racial, religious or ethnic profiling of any kind and their policies prohibit investigations of individuals based solely on activities protected by the First Amendment, or based solely on their religion, race, ethnicity or national origin," she said.