Craig Monteilh was no stranger to federal agents. A hulking man who’d spent much of his teenage and adult years as an amateur bodybuilder, Monteilh had once made a living ripping off drug dealers. One time, in 1986, the deal went bad, and Monteilh found himself sitting across the table from agents with the Drug Enforcement Administration. They gave him two options: Go to prison, or become an informant.

Monteilh chose the latter, launching a career as a professional snitch that lasted more than two decades. Because of his ethnically ambiguous appearance, Monteilh was a versatile informant for both the DEA and the FBI — going into cases with covers ranging from a white supremacist to a Russian hit man to a Sicilian drug trafficker.

“I was very good at what I did,” Monteilh boasted.

In 2006, two agents with the FBI’s counterterrorism section — which had gone from a low-priority outfit prior to 9/11 to the bureau’s best-funded one — approached Monteilh with an ambitious new assignment. They wanted him to pose as a Muslim convert and infiltrate mosques throughout Southern California, home to an estimated half-million Muslims, a diverse set of Islamic worshippers living in shadows of Disneyland in sprawling Orange County.

“This was a massive undertaking for the FBI,” Monteilh said. “It was an experiment — that’s what they called it — to see if I could actually fool an entire community. I’m a white guy, right? My backstory was that my mother was Syrian. My father was French. My father suppressed our religious heritage on my mother’s side.”

Monteilh spent the next 18 months secretly recording conversations with unsuspecting Muslims and providing intelligence back to the FBI about scores of men and women whose only apparent transgression was practicing their religion. The name of the FBI program, Operation Flex, came from Monteilh being a lifelong gym rat. By offering his services as a fitness instructor to Muslim men, the FBI figured, Monteilh could build trust and identify potential security threats.

“I remember being introduced to him as a new convert,” said Yassir Fazaga, an imam in Southern California at the time. “He was very fit. I remember telling him that. He even mentioned that he could train with me.”

Monteilh eventually had a falling-out with the FBI after he was sent to prison on state criminal charges. Upon his release in 2008, he had a score to settle. He held a makeshift press conference with local media in his living room and blew the whistle on Operation Flex, describing how he spied on Muslims for the FBI without having any reason to believe that these people were committing crimes.

Not long after Monteilh went public, the American Civil Liberties Union contacted him to explore an alliance. Monteilh agreed to document his activities for the FBI in a sworn affidavit, and the ACLU filed a class-action lawsuit against the U.S. government in 2011 alleging that federal agents had violated constitutional protections.

“The use of the state secrets privilege was entirely to protect the FBI’s methodology from public scrutiny and legal accountability.”

In November, the case will go before the U.S. Supreme Court, which will consider whether the Justice Department should be allowed to effectively scuttle the lawsuit without a trial. As in many cases of the post-9/11 era, the federal government hopes to do so by asserting the so-called state secrets privilege — which allows the U.S. government to block the release of information that could harm national security.

Michael German, a former FBI agent who is now a fellow at the Brennan Center for Justice, believes that the government isn’t concerned about state secrets so much as about escaping public accountability for its actions. “The use of the state secrets privilege was entirely to protect the FBI’s methodology from public scrutiny and legal accountability, so that the practices could continue without a public acknowledgement that might drive reform efforts,” German said.

The case has become one of the most significant legal challenges of the FBI’s post-9/11 surveillance of Muslims — with Monteilh, a brawny and uncouth man, the unlikely central figure.

But the ACLU and Monteilh have fundamentally different motivations for trying to force the government to reveal what happened during Operation Flex. The ACLU is attempting to hold the government accountable for what it views as an unconstitutional spying program that targeted a religious minority, while Monteilh said he wants the world to know that he’s a world-class spy singularly responsible for one of the most significant domestic intelligence-gathering programs of the post-9/11 era.

“It benefits me to be involved in this case,” Monteilh said after the Supreme Court announced it would hear the case. “It’s my legacy. I created it. This is me. I am Operation Flex.”

GARDEN GROVE, CA - NOVEMBER 14: Mohammed Ali, 85, leaves the Garden Grove mosque on November 14, 2010, in Garden Grove, CA.  There is growing tension between the Muslim community of southern California and the FBI after an informant, Craig Monteilh, infiltrated local mosques to gather information only a month after local FBI leaders told the leaders of the Muslim community that the FBI would do no such thing.  Now, Monteilh is suing the FBI over their treatment of him and he's telling details of his operation. (Photo by Jahi Chikwendiu/The Washington Post via Getty Images)

A Muslim man leaves a mosque on Nov. 14, 2010, in Garden Grove, Calif.

Photo: Jahi Chikwendiu/The Washington Post via Getty Images

The Post-9/11 Surveillance Apparatus

Eleven years ago, while researching how the FBI responded to terrorism threats during the first decade after the 9/11 attacks, I met Craig Monteilh in his lawyer’s office near the John Wayne Airport in Orange County, California.

Monteilh was wearing dark dress slacks and a light-purple button-down shirt made of a synthetic silk material that glimmered below the neon lights of the office. Monteilh has a muscular, top-heavy frame, and he moves like a child’s action-figure toy. His neck is so thick, he never fastens the top button of his shirt. His shaved head gives you a clear view of his large skull, and on the sides of his forehead, you can plainly see the veins bulging below the taut skin near his temples.

“I’m not Mr. Universe, but I am Mr. Inconspicuous, right?” Monteilh told me.

The FBI’s post-9/11 surveillance program in Muslim communities nationwide is something that we know a lot about now, two decades into the so-called war on terror: The bureau recruited more than 15,000 informants, the most ever in its history, and used these people to find information, such as immigration, criminal, or financial problems, that could be used as leverage to recruit other informants. The informant ranks swelled so quickly that the FBI developed a software program, called Delta, to track and manage its human sources. These informants also led hundreds of Muslims nationwide into aggressive FBI counterterrorism sting operations, in which undercover agents or informants played essential parts in supposed terror plots, often providing the weapons, money, and logistical support needed.

But a decade ago, around when I first met Monteilh, journalists like me were only beginning to understand the full scale and potential illegality of the FBI’s post-9/11 surveillance of Muslims. It was difficult then to assess Monteilh’s credibility: While he had documents that proved he had worked for the government, including a letter from the FBI that referred to a nondisclosure agreement he signed during Operation Flex, Monteilh had a checkered past. He’d been in and out of trouble with the law, and as a longtime government informant, he’d effectively become a professional liar — not an innately trustworthy source.

Monteilh also had a habit of dribbling out over time new details about what he did in Operation Flex. That made it appear that he was playing the press in a fairly sophisticated attempt to stay in the limelight — or that he was just making up more and more salacious details, such as his claim that the FBI ordered him to have sexual relationships with Muslim women, that he knew would titillate journalists. As a result, early news reports about Monteilh danced around questions of his credibility: His story was incredible, and important if true, but should we believe it?

Two decades after 9/11, the blanket surveillance of U.S. Muslim communities under the guise of counterterrorism is no longer surprising or controversial. But in the first decade after 9/11, when Monteilh went public with what he’d done, that wasn’t the case.

“A lot of the surveillance of the Muslim community that people were so upset about during that period has become normalized,” said Ahilan Arulanantham, the ACLU lawyer who is suing the government over Monteilh’s spying. “The FBI still goes out and interviews people in the Muslim community, still sometimes asking people about where they go mosque, what does the imam say, how many times you pray. The whole infrastructure for watchlisting — with the no-fly list and the terrorist screening database and all that — is in place.”

The FBI’s surveillance of Muslim communities was rooted in an effort to correct the intelligence failures of 9/11. In the run-up to the attacks, the FBI was technologically hobbled, having suffered for years under its previous director, Louis Freeh, an avowed Luddite. On the day the twin towers fell, for example, FBI agents were forced to use fax machines to distribute photos of the suspected hijackers. “Agents lacked access to even the most basic internet technology,” John Ashcroft, then the attorney general, explained to the 9/11 Commission, which was created to investigate the U.S.’s failure to prevent the attack.

After the attacks, President George W. Bush told Robert Mueller, who had taken over as FBI director just a week earlier, that a “never again” counterterrorism policy needed to be instituted. Mueller’s FBI responded to this by aggressively recruiting informants from Muslim communities and following up on any lead, no matter how ridiculous, encouraged by the government’s splashy “If you see something, say something” sloganeering.

The bureau also embraced technology and data as tools for fighting crime and preventing terrorism. In 2005, Mueller brought Philip Mudd, the former second-in-command of the CIA Counterterrorism Mission Center, to the FBI as deputy director of the newly established national security branch. Mudd took over an FBI program, called Domain Management, that tracked immigrants suspected of being involved in industrial espionage for their home countries. Mudd expanded Domain Management to include government and commercial data in a way that allowed the FBI to map Muslim communities throughout the United States. Inside the bureau, some veteran agents described Mudd’s expanded Domain Management as unproductive and intrusive, with one FBI executive alleging during a high-level meeting that Mudd had pushed the bureau to “the dark side.” (Mudd has since remade himself as a fire-breathing commentator on CNN.)

Some FBI agents referred to Domain Management as “Battlefield Management,” for the way it allowed the bureau to target specific geographic areas based on estimated Muslim populations. It was in this context that the FBI secretly launched Operation Flex in Southern California in 2006 and brought in Monteilh as the primary informant.

ANAHEIM, CA - NOVEMBER 16, 2010: Khadija Bawahab, 3rd from left, walks with her grandchildren, from left, Rayhan Bawahab, Jamila Bawahab, and Bilal following Eid al-Adha prayers at the Omar al Farouk mosque on November 16, 2010, in Anaheim, CA.  There is growing tension between the Muslim community of southern California and the FBI after an informant, Craig Monteilh, infiltrated local mosques - including this mosque - to gather information only a month after local FBI leaders told the leaders of the Muslim community that the FBI would do no such thing.  Now, Monteilh is suing the FBI over their treatment of him and he's telling details of his operation. (Photo by Jahi Chikwendiu/The Washington Post via Getty Images)

A Muslim woman walks with her grandchildren following Eid al-Adha prayers at the Omar Al-Farouk mosque on Nov. 16, 2010, in Anaheim, Calif.

Photo: Jahi Chikwendiu/The Washington Post via Getty Images

Operation Flex

Monteilh entered Orange County’s Muslim communities as someone interested in Islam. He was embraced by local Muslims, and he took shahada, the profession of faith. Monteilh worked out with dozens of men, played video games with others, went on dates with Muslim women, and in a short time became a well-known convert in Southern California’s Muslim communities. He carried around secret FBI recording devices that looked like car key fobs and surreptitiously recorded conversations with hundreds of Muslim worshippers.

He was the tip of the spear for a metastasizing surveillance operation that he says targeted a group of people based solely on their religious activity. If true, that is a constitutional violation. The FBI was most interested, Monteilh said, in information that could be used as leverage to recruit informants — such as information about financial or immigration problems.

“People think the FBI goes around making arrests of Muslims. They do not want to arrest Muslims,” Monteilh said. “They want to enlist them as informants, and they’ve done it. It’s been 15 years since I’ve been in, right? I look at some people who were 23 and now they’re 38, and they’re imams now. And they’re informants. And I know, because I gave the intel.”

Monteilh had been a federal informant long enough to know the game, and he worked the FBI as much as he did Southern California’s Muslim communities. Knowing that the bureau tries to keep compensation paid to informants artificially low — in order to prevent a potential jury from viewing an informant’s testimony as being bought by the FBI — Monteilh grossly inflated his reimbursable expenses, collecting receipts wherever he could and inflating his monthly living expenses. With a wink and a nod, the FBI paid Monteilh $177,000 for his spying on Muslims in Southern California.

But the whole FBI operation soon fell apart. The leadership of a local mosque, concerned that Monteilh was an extremist, reported him to the FBI and filed a restraining order. About six months later, local police arrested Monteilh for his involvement in a scheme to con two women out of more than $150,000. Monteilh pleaded guilty to the state criminal charge and spent eight months in prison.

During the time that Monteilh was secretly spying for the FBI, Southern California’s Muslim communities, and others nationwide, began to suspect that federal law enforcement agents were targeting them without cause. Fazaga, the Eritrean-born imam who had once complimented Monteilh on his physique, invited J. Stephen Tidwell, an FBI assistant director in charge of the bureau’s Los Angeles office, to his mosque to address community concerns. Tidwell told congregants at the meeting that the FBI was not spying on Muslim communities. During the meeting, Fazaga asked Tidwell about a local newspaper report that said the FBI was surveilling Muslim students at the University of California, Irvine. “We don’t trust that,” Fazaga said of Tidwell’s assurance that the FBI wasn’t spying.

Tidwell glared at Fazaga angrily. “You’re calling me a liar?” Tidwell said.

According to Monteilh, the FBI instructed him after this meeting to devote additional time on gathering more information about Fazaga. “The FBI was pissed,” Monteilh said.

GettyImages-566068019

Federal officials stand outside the home of Ahmadullah Sais Niazi in Tustin, Calif., on Feb. 20, 2009. Niazi was arrested as part of Operation Flex.

Photo: Don Bartletti/Los Angeles Times via Getty Images

An Uneasy Alliance

Whether Operation Flex was a successful, productive mission for the FBI is debatable. Since the FBI won’t disclose what information agents obtained, the only available source is Monteilh, who claims that he not only provided information that led to the recruitment of dozens of informants but that he also led the government closer to Al Qaeda leader Osama bin Laden, who was killed by U.S. special forces in Pakistan in 2011.

Monteilh’s bin Laden claim would be easy to dismiss as the bravado of an egotistical, self-interested informant were it not for the fact that there’s some evidence to suggest it could have merit. The most significant arrest to come out of Operation Flex was of Ahmadullah Sais Niazi, who was charged with immigration violations for allegedly not reporting his previous association with Al Qaeda on his U.S. citizenship application. Niazi’s brother-in-law was bin Laden’s former bodyguard, and Monteilh secretly recorded his conversations with Niazi, who allegedly described witnessing bin Laden arrive by helicopter to Afghanistan in 1996.

While working as an FBI informant, Monteilh recorded the incriminating statements Niazi had allegedly made. But Monteilh’s decision to turn against the FBI ultimately cost the government its case against Niazi. After going public with his claims about Operation Flex, Monteilh met with Niazi’s lawyers and claimed that the FBI had tried to recruit Niazi as an informant by threatening to leak embarrassing information about his personal life. The government then dismissed the charges against Niazi, who remains in the United States but has never spoken publicly about his case.

The alliance between the ACLU and Monteilh is an uneasy one, because they have markedly different motivations. Monteilh hopes the litigation will force the government to reveal what happened during Operation Flex — information that he believes will cast him as a kind of superspy and unsung American hero who played a supporting role in the death of bin Laden. “I believe that Operation Flex is illegal. It does violate the civil rights of Muslim Americans,” Monteilh said. “I don’t like that at all. At the same time, I do believe it’s a necessary evil. I believe that, because I lived it.”

The ACLU, meanwhile, is trying to hold the government accountable for illegal spying. “It’s a complicated relationship, to put it mildly,” said Arulanantham, the ACLU lawyer. “Craig Monteilh is obviously a critical witness insofar as he’s the one who engaged in all the illegal activity at the heart of this litigation, but it’s also extensively corroborated by our clients because they interacted with Craig. They remember very well how he came into their community and how over the course of several months really made life miserable for at least hundreds of Muslims once they realized the government was trying to spy on them.”

Monteilh is transparent about one thing: He’s in this for himself. “I sought two things — fame and fortune, in that order,” Monteilh said. “I wanted to make a name for myself. I wanted to make a reputation for myself that I’m proud of. And the money comes later. I was an American spy, and I pulled it off, didn’t I? I love that about me.”

Ahilan Arulanantham, 2016 MacArthur Fellow, ACLU Southern California Offices, Los Angeles, CA, 09.10.2016

Left: Ahilan Arulanantham of the American Civil Liberties Union. Right: Council of American-Islamic Relations California deputy executive director and staff attorney Ameena Mirza Qazi, middle, takes questions at the ACLU Foundation of Southern California headquarters in Los Angeles on Feb. 23, 2011.

Photo: John D. and Catherine T. MacArthur Foundation, Damian Dovarganes/AP

State Secrets

Monteilh’s road to fame and fortune has been a long one. The ACLU filed its lawsuit in 2011. Just six months later, then-Attorney General Eric Holder declared the state secrets privilege — which allows the U.S. government to block the release of information that could harm national security. Holder’s claim covered all potential evidence in the ACLU’s lawsuit, a tactic the Bush administration had used aggressively in earlier cases, such as the ACLU’s challenge to the NSA’s warrantless wiretapping program.

“The government is saying: ‘We didn’t target people solely on the basis of religion. Beyond that, we can’t say anything because of state secrets, and therefore, the whole case has to be dismissed,’” said Arulanantham.

The ACLU is not asking the U.S. government for any information related to Operation Flex. Arulanantham and the rest of the ACLU’s legal team believe that they can adequately make their case with testimony from Monteilh and the people he spied on for the FBI.

The Justice Department isn’t asserting the state secrets privilege to stop the ACLU from rooting around in classified files. Instead, the Justice Department is asserting that the ACLU’s claims are untrue — that no one was targeted solely for their religious beliefs — but that they can’t reveal the evidence to support that claim, even confidentially to a federal judge, because of national security concerns.

The state secrets privilege is a legal doctrine that was built on a lie. In 1948, an Air Force B-29 bomber, carrying secret navigational equipment, crashed in a rural area of Georgia. Four civilian crew members were killed in the crash, and their widows sued the government for copies of the accident report. The government asserted state secrets privilege, claiming that the release of the report would damage national security, and the U.S. Supreme Court agreed with the government. Decades later, in the 1990s, the Air Force crash report from 1948 was declassified, and it did not contain national security secrets. Instead, the report contained only evidence of the government’s negligence to maintain the aircraft and train the civilian crew members on escape procedures.

The state secrets privilege is a legal doctrine that was built on a lie.

State secrets privilege became more common in the post-9/11 era. From 2001 to 2009, for example, the government asserted the privilege in more than 100 cases, according to a report by Georgetown University. Earlier this month, the U.S. government asserted the privilege in a lawsuit filed by former Saudi counterterrorism official Saad Aljabri, who claims that Saudi Crown Prince Mohammed bin Salman tried to have him killed.

As with the 1948 crash case and the case involving the former Saudi official, the U.S. government claimed that information from Operation Flex would damage national security if it were made public in federal court.

In response to the government’s state secrets claim, a federal district court upheld the privilege and dismissed the lawsuit out of hand. A federal appellate court in 2019 then reversed the lower court’s decision on all but one of the claims and ruled that the state secrets privilege was an overreach. The appellate court also ruled that the ACLU’s class of plaintiffs could seek monetary damages from the FBI for any warrantless wiretaps of their homes and offices associated with Operation Flex.

The appellate court suggested that the Justice Department can resolve the state secrets issue by following protocols established by the Foreign Intelligence Surveillance Act. Under that law, a federal judge can review secret government evidence and rule on whether the evidence supports the government’s claims.

If the government has secret evidence that exonerates the FBI in Operation Flex, Arulanantham will argue before the Supreme Court, “then they have to show it to a court and the court has to evaluate if that’s actually true.”

That’s the issue now before the Supreme Court, which will hear arguments on November 8. The Supreme Court ruling won’t be on whether Operation Flex and similar post-9/11 surveillance programs were illegal but rather whether the U.S. government can assert state secrets privilege to avoid that very legal challenge. For that reason, this unusual case, involving a self-interested informant who believes that his spying was illegal but justified, has become one of the most significant legal challenges of the FBI’s post-9/11 abuses.

“We are at the highest court,” Monteilh said. “I don’t mind saying this part out loud: We’re at that place because of me. I am the central figure of this case, aren’t I? Undoubtedly. And I am proud of that.”

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