In the order, the judge compared himself to the mythical Greek hero Odysseus, who had to navigate his ship between a six-headed monster on one side, and a dangerous whirlpool on the other. The judge wrote, “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 … Similarly, the proper application of the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security.”
However, the judge allowed the plaintiffs to proceed against five current or former FBI agents for violation of the Foreign Intelligence Surveillance Act.
The lawsuit claimed that the FBI had sent an undercover informant into Orange County mosques to collect personal information on possibly thousands of Muslims. According to the suit, the paid FBI agent took hundreds of hours of surreptitious video and audio recordings of cultural events, religious classes, and other meetings in 2006 and 2007 for the purpose of a counterterrorism investigation known as “Operation Flex.”
However, the full flexing of muscles by the FBI in Operation Flex, and hundreds of hours of secret video recordings of Muslim citizens of Orange County, regrettably failed to produce even a single conviction.
The lawyer for the plaintiffs said the ACLU and the Council on American-Islamic Relations, intended to appeal the dismissal. The attorney said, “It's deeply unfair because now hundreds of law-abiding Muslim citizens will never know whether the government violated their most basic civil rights … That's why it's so important that this case be reviewed on appeal because the state secrets privilege is absolute when the government successfully invokes it.”
The FBI has admitted using the confidential informant, but denies its involvement in any unconstitutional practices, and says it took reasonable measures to probe evidence of potential militant activity.
