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Craig Monteilh was no stranger to federal agents. A hulking man who\xe2\x80\x99d 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\xc2\xa0two options:\xc2\xa0Go 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 \xe2\x80\x94 going into cases with covers ranging from a white supremacist to a Russian hit man to a Sicilian drug trafficker.

\xe2\x80\x9cI was very good at what I did,\xe2\x80\x9d Monteilh boasted.

In 2006, two agents with the FBI\xe2\x80\x99s counterterrorism section \xe2\x80\x94 which had gone from a low-priority outfit prior to 9/11 to the bureau\xe2\x80\x99s best-funded one \xe2\x80\x94 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.

\xe2\x80\x9cThis was a massive undertaking for the FBI,\xe2\x80\x9d Monteilh said. \xe2\x80\x9cIt was an experiment \xe2\x80\x94 that\xe2\x80\x99s what they called it \xe2\x80\x94 to see if I could actually fool an entire community. I\xe2\x80\x99m 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\xe2\x80\x99s side.\xe2\x80\x9d

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.

\xe2\x80\x9cI remember being introduced to him as a new convert,\xe2\x80\x9d said Yassir Fazaga, an imam in Southern California at the time. \xe2\x80\x9cHe was very fit. I remember telling him that. He even mentioned that he could train with me.\xe2\x80\x9d

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.

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\xc2\xa0state secrets privilege \xe2\x80\x94 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\xe2\x80\x99t concerned about state secrets so much as about escaping public accountability for its actions. \xe2\x80\x9cThe use of the state secrets privilege was entirely to protect the FBI\xe2\x80\x99s methodology from public scrutiny and legal accountability, so that the practices could continue without a public acknowledgement that might drive reform efforts,\xe2\x80\x9d German said.

The case has become one of the most significant legal challenges of the FBI\xe2\x80\x99s post-9/11 surveillance of Muslims \xe2\x80\x94 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\xe2\x80\x99s a world-class spy singularly responsible for one of the most significant domestic intelligence-gathering programs of the post-9/11 era.

\xe2\x80\x9cIt benefits me to be involved in this case,\xe2\x80\x9d Monteilh said after the Supreme Court announced it would hear the case. \xe2\x80\x9cIt\xe2\x80\x99s my legacy. I created it. This is me. I am Operation Flex.\xe2\x80\x9d

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\xe2\x80\x99s 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\xc2\xa0the office. Monteilh has a muscular, top-heavy frame, and he moves\xc2\xa0like a child\xe2\x80\x99s 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.

\xe2\x80\x9cI\xe2\x80\x99m not Mr. Universe, but I am Mr. Inconspicuous, right?\xe2\x80\x9d Monteilh told me.

The FBI\xe2\x80\x99s 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\xc2\xa0people 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\xe2\x80\x99s post-9/11 surveillance of Muslims. It was difficult then to assess Monteilh\xe2\x80\x99s 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\xe2\x80\x99d been in and out of trouble with the law, and as a longtime government informant, he\xe2\x80\x99d effectively become a professional liar \xe2\x80\x94 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 \xe2\x80\x94 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\xe2\x80\x99d done, that wasn\xe2\x80\x99t the case.

\xe2\x80\x9cA lot of the surveillance of the Muslim community that people were so upset about during that period has become normalized,\xe2\x80\x9d said Ahilan Arulanantham, the ACLU lawyer who is suing the government over Monteilh\xe2\x80\x99s spying. \xe2\x80\x9cThe 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 \xe2\x80\x94 with the no-fly list and the terrorist screening database and all that \xe2\x80\x94 is in place.\xe2\x80\x9d

The FBI\xe2\x80\x99s 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\xc2\xa0twin towers fell, for example, FBI agents were forced to use fax machines to distribute photos of the suspected hijackers. \xe2\x80\x9cAgents lacked access to even the most basic internet technology,\xe2\x80\x9d John Ashcroft, then the attorney general, explained to the 9/11 Commission, which was created to investigate the U.S.\xe2\x80\x99s 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 \xe2\x80\x9cnever again\xe2\x80\x9d counterterrorism policy needed to be instituted. Mueller\xe2\x80\x99s 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\xe2\x80\x99s splashy \xe2\x80\x9cIf you see something, say something\xe2\x80\x9d 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\xe2\x80\x99s expanded Domain Management as unproductive and intrusive, with one FBI executive alleging during a high-level meeting that Mudd had pushed the bureau to \xe2\x80\x9cthe dark side.\xe2\x80\x9d (Mudd has since remade himself as a fire-breathing commentator on CNN.)

Some FBI agents referred to Domain Management as \xe2\x80\x9cBattlefield Management,\xe2\x80\x9d 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.

Operation Flex

Monteilh entered Orange County\xe2\x80\x99s 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\xe2\x80\x99s 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\xc2\xa0was 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 \xe2\x80\x94 such as information about financial or immigration problems.

\xe2\x80\x9cPeople think the FBI goes around making arrests of Muslims. They do not want to arrest Muslims,\xe2\x80\x9d Monteilh said. \xe2\x80\x9cThey want to enlist them as informants, and they\xe2\x80\x99ve done it. It\xe2\x80\x99s been 15 years since I\xe2\x80\x99ve been in, right? I look at some people who were 23 and now they\xe2\x80\x99re 38, and they\xe2\x80\x99re imams now. And they\xe2\x80\x99re informants. And I know, because I gave the intel.\xe2\x80\x9d

Monteilh had been a federal informant long enough to know the game, and he worked the FBI as much as he did Southern California\xe2\x80\x99s Muslim communities. Knowing that the bureau tries to keep compensation paid to informants artificially low \xe2\x80\x94 in order to prevent a potential jury from viewing an informant\xe2\x80\x99s testimony as being bought by the FBI \xe2\x80\x94 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\xe2\x80\x99s 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\xe2\x80\x99s 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. \xe2\x80\x9cWe don\xe2\x80\x99t trust that,\xe2\x80\x9d Fazaga said of Tidwell\xe2\x80\x99s assurance that the FBI wasn\xe2\x80\x99t spying.

Tidwell glared at Fazaga angrily. \xe2\x80\x9cYou\xe2\x80\x99re calling me a liar?\xe2\x80\x9d Tidwell said.

According to Monteilh, the FBI instructed him after this meeting to devote additional time on gathering more information about Fazaga. \xe2\x80\x9cThe FBI was pissed,\xe2\x80\x9d Monteilh said.

An Uneasy Alliance

Whether Operation Flex was a successful, productive mission for the FBI is debatable. Since the FBI won\xe2\x80\x99t 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\xe2\x80\x99s 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\xe2\x80\x99s 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\xe2\x80\x99s brother-in-law was bin Laden\xe2\x80\x99s 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\xe2\x80\x99s 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\xe2\x80\x99s 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 \xe2\x80\x94 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. \xe2\x80\x9cI believe that Operation Flex is illegal. It does violate the civil rights of Muslim Americans,\xe2\x80\x9d Monteilh said. \xe2\x80\x9cI don\xe2\x80\x99t like that at all. At the same time, I do believe it\xe2\x80\x99s a necessary evil. I believe that, because I lived it.\xe2\x80\x9d

The ACLU, meanwhile, is trying to hold the government accountable for illegal spying. \xe2\x80\x9cIt\xe2\x80\x99s a complicated relationship, to put it mildly,\xe2\x80\x9d said Arulanantham, the ACLU lawyer. \xe2\x80\x9cCraig Monteilh is obviously a critical witness insofar as he\xe2\x80\x99s the one who engaged in all the illegal activity at the heart of this litigation, but it\xe2\x80\x99s 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.\xe2\x80\x9d

Monteilh is transparent about one thing: He\xe2\x80\x99s in this for himself. \xe2\x80\x9cI sought two things \xe2\x80\x94 fame and fortune, in that order,\xe2\x80\x9d Monteilh said. \xe2\x80\x9cI wanted to make a name for myself. I wanted to make a reputation for myself that I\xe2\x80\x99m proud of. And the money comes later. I was an American spy, and I pulled it off, didn\xe2\x80\x99t I? I love that about me.\xe2\x80\x9d

State Secrets

Monteilh\xe2\x80\x99s road to fame and fortune has been a long one. The ACLU filed its lawsuit\xc2\xa0in 2011. Just six months later, then-Attorney General Eric Holder declared the state secrets privilege \xe2\x80\x94 which allows the U.S. government to block the release of information that could harm national security. Holder\xe2\x80\x99s claim covered all potential evidence in the ACLU\xe2\x80\x99s lawsuit, a tactic the Bush administration had used aggressively in earlier cases, such as the ACLU\xe2\x80\x99s challenge to the NSA\xe2\x80\x99s warrantless wiretapping program.

\xe2\x80\x9cThe government is saying: \xe2\x80\x98We didn\xe2\x80\x99t target people solely on the basis of religion. Beyond that, we can\xe2\x80\x99t say anything because of state secrets, and therefore, the whole case has to be dismissed,\xe2\x80\x99\xe2\x80\x9d 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\xe2\x80\x99s 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\xe2\x80\x99t asserting the state secrets privilege to stop the ACLU from rooting around in classified files. Instead, the Justice Department is asserting that the ACLU\xe2\x80\x99s claims are untrue \xe2\x80\x94 that no one was targeted solely for their religious beliefs \xe2\x80\x94 but that they can\xe2\x80\x99t 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\xe2\x80\x99s negligence to maintain the aircraft and train the civilian crew members on escape procedures.

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\xe2\x80\x99s 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\xe2\x80\x99s 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\xe2\x80\x99s 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\xe2\x80\x99s claims.

If the government has secret evidence that exonerates the FBI in Operation Flex, Arulanantham will argue before the Supreme Court, \xe2\x80\x9cthen they have to show it to a court and the court has to evaluate if that\xe2\x80\x99s actually true.\xe2\x80\x9d

That\xe2\x80\x99s the issue now before the Supreme Court, which will hear arguments on November 8. The Supreme Court ruling won\xe2\x80\x99t 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\xe2\x80\x99s post-9/11 abuses.

\xe2\x80\x9cWe are at the highest court,\xe2\x80\x9d Monteilh said. \xe2\x80\x9cI don\xe2\x80\x99t mind saying this part out loud: We\xe2\x80\x99re at that place because of me. I am the central figure of this case, aren\xe2\x80\x99t I? Undoubtedly. And I am proud of that.\xe2\x80\x9d

WASHINGTON \xe2\x80\x94\xc2\xa0A Russian analyst who provided information for a dossier of research used during the Trump-Russia investigation has been arrested by U.S. authorities as part of an ongoing special counsel investigation, the Justice Department said Thursday.

Igor Danchenko is the third person, and second in a two-month span, to face charges in special counsel John Durham\’s probe into the origins of the Russia investigation.

Danchenko functioned as a source for Christopher Steele, a former British spy who was paid by Democrats to examine ties between Russia and Donald Trump during the 2016 presidential campaign. The research he compiled was provided to the FBI and used by federal authorities as they applied for and received surveillance warrants targeting a former Trump campaign aide aide.

Both the dossier and the Durham probe are politically charged. Trump\’s Justice Department appointed Durham as Trump claimed the investigation of campaign ties to Russia was a witch hunt and pointed to the dossier, some of which remains uncorroborated or has been discredited, as evidence of a tainted probe driven by Democrats.

But the dossier had no role in the launching of the Trump-Russia investigation and special counsel Robert Mueller ultimately found questionable ties between the Trump campaign and Russia, but not sufficient evidence to pursue criminal charges. Democrats have lambasted the Durham probe as politically motivated, but the Biden administration has not stopped it.

The Justice Department\’s inspector general has faulted the FBI and the Justice Department for their handling of the dossier. Danchenko \xe2\x80\x94 who was not identified by name in the watchdog report \xe2\x80\x94 had revealed to FBI investigators during a 2017 interview about the dossier\’s origins and veracity \xe2\x80\x94 “potentially serious problems with Steele\’s descriptions of information in his reports.”

But those qualms from Danchenko were omitted from the final three surveillance applications, making the dossier appear more credible than even one of its own sources thought it was, according to the report from Inspector General Michael Horowitz.

Danchenko, who previously worked for the Brookings Institution, has himself suggested that the information he offered to Steele was not meant to be portrayed as indisputable fact.

“Even raw intelligence from credible sources, I take it with a grain of salt,” Danchenko said in an interview with The New York Times last year. “Who knows, what if it\’s not particularly accurate? Is it just a rumor or is there more to it?”

It was not immediately clear what charges Danchenko might face. But it would be the third criminal action brought by Durham, following the September indictment of Michael Sussmann, a cybersecurity lawyer accused of making a false statement to the FBI during a 2016 meeting, and a guilty plea last year from an FBI lawyer who admitted altering an email related to the surveillance of the Trump aide, Carter Page.

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