Yes, the FBI was spying on the Muslim community in Southern California and, yes, it lied to a federal judge about the existence of documents relevant to a case regarding that   surveillance.

But, no, the FBI shouldn’t be sanctioned for its behavior.

That was the ruling by the U.S. Ninth Circuit Court of Appeals, which disagreed with U.S. District Judge Cormac J. Carney, who ordered the government in 2011 to pay court costs for those bringing suit on behalf of the Islamic Shura Council of Southern California, an umbrella organization of mosques and Muslim organizations that has operated in Southern California since 1995.

The civil liberties case before the District Court alleged that U.S. authorities illegally spied on mosques in 2006 and 2007. The FBI was accused of sending an undercover informant into several Orange County mosques as part of Operation Flex and may have collected information on hundreds of people. The FBI admitted that it used the informant, but demanded that the case be tossed for national security reasons.

Lawyers for the mosques demanded to see surveillance records on the plaintiffs. The FBI told the judge it had provided all the information within the scope of the plaintiffs’ original Freedom of Information Act request. That wasn’t true and an incensed Judge Carney sanctioned the FBI.

“The Government cannot, under any circumstance, affirmatively mislead the Court,” Judge Carney wrote.

But the Ninth Court of Appeals said that wasn’t true and reversed his ruling. You can, apparently lie to a judge if later on you admit you lied.

The FBI had initially released eight heavily-redacted pages of information in response to the lawsuit brought against them and said that was all there was. But eventually they coughed up another 100 pages of equally heavily-redacted documents that they showed the judge privately in camera. Then, later, the FBI produced yet more documents.

In response to the serial deception, Carney wrote in his 2011 ruling, “The court must impose monetary sanctions to deter the government from deceiving the court again.”

The three-judge appellate panel disagreed, cited what is known as a safe harbor provision of the law, and reversed on procedural grounds, saying what counted was the fact that the judge eventually got the documents.

A frustrated Judge Carney tossed out the spying lawsuit against the FBI in August 2012 for national security reasons, likening himself to a fictional Greek hero who must save all those around him at the expense of a few. “Odysseus opted to pass by the monster and risk a few of his individual sailors, rather than hazard the loss of his entire ship to the sucking whirlpool,” the apologetic judge wrote.

-Ken Broder

To Learn More:

No Sanctions for FBI's Evasive Court Tactics (by Tim Hull, Courthouse News Service)

Judge Sanctions FBI for Hiding Info from Him (by Tim Hull, Courthouse News Service)

Mosques Will Not Get Day in Court to Contest U.S. Spying (by Ken Broder, AllGov California)

Federal Court Sanctions FBI for Lying about Surveillance Records (by Noel Brinkerhoff and David Wallechinsky, AllGov)

Islamic Shura Council of Southern California et al v. Federal Bureau of Investigation  (U.S. Ninth Circuit Court of Appeals) (pdf)