At a Glance
The Supreme Court will hear argument in the case on Nov. 8, 2021.
Winifred Kao, Hammad Alam, Glenn Katon, AAAJ-ALC
Asian Americans Advancing Justice-Asian Law Caucus, CLEAR (Creating Law Enforcement Accountability and Responsibility), the Center for Constitutional Rights, the American-Arab Anti-Discrimination Committee, the American Muslim Bar Association, the Partnership for the Advancement of New Americans, and Secure Justice.
Yassir Fazaga, a Black Muslim imam who immigrated to the United States from Eritrea, and his congregants were targeted by the FBI, under a dragnet surveillance operation that, by the Bureau’s own acknowledgment, was based on no reason other than Fazaga and his congregation’s Muslim faith. Fazaga and two of his congregants sued seeking damages and destruction of the information gathered.
When the government asserted the State Secrets Privilege (under which the government can refuse to produce relevant evidence in a case if its disclosure, even to the judge alone, might damage national security), the district (trial) court dismissed the case. But the Court of Appeals for the Ninth Circuit held that under a post-Watergate statute governing intelligence gathering, the trial court could have reviewed Fazaga’s claims (albeit in private and without requiring all sides to be present). The Supreme Court granted review at the government’s request and will now decide whether the Court of Appeals’ ruling is correct, or whether or whether the State Secrets Privilege simply mandates dismissal of the case without any further proceedings.
The Center for Constitutional Rights submitted a friend-of-the court (amicus) brief to the Supreme Court, authored principally by Asian Americans Advancing Justice - Asian Law Caucus and CUNY CLEAR. The brief argues that “[t]he FBI’s surveillance of Respondent Fazaga and his congregants, even where no factual or legal bases justified such scrutiny, is part of a deep and sustained history of government targeting of Muslims, and in particular Black Muslims, in America. These communities have been subjected to suspicionless and unlawful surveillance based on the government’s baseless assumptions of their purported foreignness, disloyalty, and supposed proclivity for violence, presumed by the government to be inherent racial and religious characteristics.” The brief recounts in detail the history of systematic surveillance of Muslim organizations, driven by prejudice, from its beginnings in the 1930s through COINTELPRO’s targeting of Black nationalists and the Nation of Islam in the 1960s, concluding by describing the vast expansion of surveillance directed at the Muslim community by the federal government and the NYPD in the wake of 9/11.
According to the brief, “That … Fazaga is both a Black Muslim and an immigrant reflects aptly the historical patterns of suspicionless surveillance to which Muslim Americans have been unrelentingly subjected at the hands of the government.” However, “[t]his case is of immense consequence not only to Muslim communities in the United States, but to the preservation of this country’s democratic principles. … That such conduct persists unchecked imperils this nation’s democratic foundations and threatens the rule of law.” The brief concludes by describing some of the systematic harms to the community that such pervasive surveillance produces.
The organizations joining the brief are Asian Americans Advancing Justice-Asian Law Caucus, CLEAR (Creating Law Enforcement Accountability and Responsibility), the American-Arab Anti-Discrimination Committee, the American Muslim Bar Association, the Partnership for the Advancement of New Americans, and Secure Justice.