June 29, 2010
The federal judge who heard arguments on June 21 ordered a limited in camera review more than 250 documents withheld by the government to determine whether the information was properly withheld. The order reads in part:
Accordingly, because many of the exemptions asserted by Defendants necessarily depend on the content of the underlying documents, it appears this case is a perfect example where the Court should exercise its discretion to conduct an in camera review of the documents, especially in light of the parties' dispute over their content and the important civil liberties at stake.
Read the Order.
June 21, 2010
SAN DIEGO – In response to an important Freedom of Information Act Request concerning spying on Muslims in San Diego that dates back to July 2008, the Federal Bureau of Investigation and the Justice Department fell far short of their obligations by disclosing only heavily redacted documents. In arguments today before a federal judge, and in a brief filed early in June opposing the agencies’ motion for a summary judgment, the San Diego ACLU, acting on behalf of the Council on American-Islamic Relations (CAIR) and its public relations director Edgar Hopida, asked a federal district court judge to require the agencies to conduct a complete search and produce the information they have improperly withheld.
The limited information the agencies’ produced only after the ACLU initiated this litigation and seventeen months after the original requests raises serious concerns that the FBI was targeting CAIR, Mr. Hopida, the Islamic Center of San Diego and San Diego-area Muslim-Americans because of their religion or politics. Both religious and political expression are clearly protected by the U.S. Constitution and the FBI often claims not to investigate organizations or communities on that basis. The produced documents repeatedly refer to unnamed FBI “assets” cultivated to obtain information on Muslim-Americans’ constitutionally protected activities:
• Spying and reporting on a Muslim prayer meeting
• Spying and reporting on an individual’s criticism of the U.S. occupation of Iraq
• “Asset was asked if asset knows the name Edgar Hopida…Asset agreed to notify agents if asset hears anything regarding Hopida or CAIR”
• “Asset agreed to go to a mosque or Council on American-Islamic Relations (CAIR) meetings if needed at anytime in the future…Asset was advised of the first annual CAIR banquet for the San Diego Chapter…Asset stated he/she would attend this dinner and take note of any new CAIR leadership, any items of concern, the topics discussed, and to identify speakers”
• “Islamic Center, San Diego, California: Appears to be some festival for children in the parking lot…”
“We have been waiting for this information for almost two years now,” said David Blair-Loy, legal director of the ACLU of San Diego & Imperial Counties. “It is particularly vital that we access these documents because the FBI has a long history of illegal infiltration and surveillance of political activists and minority groups. The potential is strong that the government is monitoring or even infiltrating religious organizations.”
The FOIA requests seek information from the FBI, the National Joint Terrorism Task Force and any other joint terrorism task force regarding a surveillance program uncovered in an investigative report in the San Diego Union-Tribune in May 2008 describing a security breach at Camp Pendleton, in which staff had stolen classified information and passed it along to local law enforcement agencies and defense contractors. The article reported that “more than 100 FBI and Defense Department files” indicated that the plaintiffs, CAIR-CA and its San Diego chapter public relations director, may have been monitored by a surveillance program targeting Muslim groups.
The initial FOIA request was simple: Was surveillance conducted on law abiding Muslim residents of Southern California based solely on their religion? Is this surveillance continuing? Who authorized it and why?
“We are seeking this information because we are concerned that without clear details about how and why surveillance was conducted, there will be a growing mistrust between American Muslim community and law enforcement,” said Edgar Hopida, public relations director for CAIR’s San Diego office. “Prayers at mosques and children’s festivals are not credible reasons for surveillance, but a gross breach of constitutionally protected rights. What is further troubling is the use of informants and agent provocateurs to create further mistrust and undermine the American Muslim community. All Americans should be concerned about the FBI’s behavior because it undercuts the values and freedoms that make our country great.”
The brief requests the Court to order the FBI and DOJ to provide the requested information that has been improperly withheld, but at a minimum asks the Court to conduct an in camera review of the withheld and redacted documents to determine whether the agencies properly invoked FOIA exemptions.