Heather L. Weaver, Senior Staff Attorney, ACLU Program on Freedom of Religion and Belief
Texas plans to execute John H. Ramirez, but state officials are not satisfied with merely taking his life. They are also intent on denying him the right to practice his faith when it matters most—in his final moments. Mr. Ramirez, a Christian, has asked that his longtime pastor be able to touch him and pray aloud over him as he dies. When the state refused this modest religious accommodation, the Supreme Court stepped in, delaying the execution and agreeing to hear Mr. Ramirez’s case. Oral argument is set for November 9.
In Mr. Ramirez’s Baptist tradition, the practice of spiritual touch by a pastor is often referred to as “laying hands on” the congregant. Laying hands on a person, along with audible prayer, is not only a matter of spiritual comfort, but, in the context of dying, it’s also intended to guide the individual into the afterlife and provide a final opportunity for them to engage with their faith at the most critical time.
During the oral argument, Texas will no doubt contend that granting Mr. Ramirez’s religious request would threaten to disrupt the execution and present a safety and security risk. However, as the ACLU explained in an amicus brief filed on behalf of spiritual advisors who have been present in the death chamber during executions and former prison officials who have overseen executions, the state’s claim is hard to square with its own history. Allowing spiritual advisors to deliver audible prayers during executions and place their hands on individuals during their final moments has been common practice in Texas. It’s well-documented that chaplains present in the death chamber in Texas have been permitted to touch the leg or ankle of individuals being executed and pray aloud with them to offer spiritual comfort. None of these instances caused a disruption to the proceedings.
Texas’s past embrace of this practice is not surprising; spiritual touch and praying aloud over people have been adopted by various faiths and denominations. For example, the ACLU’s amicus brief notes that Catholic priests who visit hospitals are trained to touch the patient (with permission) while praying aloud because it establishes a sacred bond and provides religious support. Indeed, many Catholics believe that last rites are not valid without touch. For that reason, during the federal government’s execution of Dustin Honken last year, Father Mark O’Keefe was permitted to administer last rites to Mr. Honken in the death chamber. He placed a host on Mr. Honken’s tongue, put holy oil on Mr. Honken’s head and hands, and delivered several prayers out loud. During other federal executions held last year and earlier this year, spiritual advisors of various faiths were likewise permitted to pray out loud or — in the case of one Buddhist individual who was executed — chant throughout the entire proceeding.
Former prison officials who have been responsible for overseeing executions agree that any concerns Texas has with his request can be addressed through the implementation of basic protocols. As discussed in the ACLU’s amicus brief, the state could limit Mr. Ramirez’s pastor to touching his shoulder, ankle, or foot, where there are no intravenous lines present and any disruption thus unlikely. In advance of the execution, officials could also conduct a thorough background check and provide an orientation and training. In addition, officials could assign an escort to stand by the pastor at all times to further reduce any risk.
Federal law — the Religious Land Use and Institutionalized Persons Act — provides heightened protections for incarcerated individuals’ religious exercise, recognizing that prison officials’ reasons for interfering with or prohibiting religious practices are often arbitrary and unsupported by evidence. Texas must meet a very high legal threshold for justifying its refusal to accommodate Mr. Ramirez’s religious beliefs. It simply has not met this standard here.
The ACLU has long worked to end the death penalty. But until that day arrives, the legal ability to execute people does not mean that states can trample other fundamental rights in the process. Every person is entitled to religious liberty—even those who will die at the hands of the government. Especially those who will die at the hands of the government.
By Adriel I. Cepeda Derieux, Senior Staff Attorney, ACLU Voting Rights Project
This piece was originally published in The Hill on 11/8/21. The full piece can be found here.
In 2012, José Vaello-Madero, a U.S. citizen born in Puerto Rico but living in New York, applied for and received Supplemental Security Income (SSI) benefits because severe health problems left him unable to support himself. A year later, he moved to Puerto Rico to rejoin his family and care for his ailing wife. He continued to receive SSI benefits, unaware that federal law excludes Puerto Rico residents from the program, simply because they live in a U.S. territory rather than a state. In 2016, the federal government sued Vaello-Madero to collect over $28,000 it claimed it “overpaid.” On Tuesday, the Supreme Court will hear his case in United States v Vaello-Madero, a case that could help put an end to unconstitutional discrimination against residents of Puerto Rico and other U.S. territories.
SSI is a nationally-applicable program that provides benefits and support for seniors and people with disabilities with limited means. Eligibility should be solely based on one’s disability and financial means, but as Vaello-Madero learned, it also is dependent on where one lives. The law extends benefits to residents of all 50 states, and to residents of the Northern Mariana Islands, a U.S. territory. But it denies assistance to the elderly and people with disabilities who happen to live in Puerto Rico or any other U.S. territory—even though most of them are U.S. citizens and all are entitled to equal protection under the Constitution.
In denying Puerto Rico residents access to SSI benefits, Congress continues a troubling and discriminatory pattern of affording residents of U.S. territories—overwhelmingly, people of color—second-class status. Congress, for example, also disfavors residents of the territories access to Medicaid and Supplemental Nutrition Assistance Program (SNAP) funding. Residents of U.S. territories are also often on the losing end of receiving emergency funding like the federal Coronavirus Relief (CARES) law or funds to rebuild after a devastating hurricane like the one that hit Puerto Rico in 2017.
In the Supreme Court, Vaello-Madero argues that denying him benefits simply because he now lives in Puerto Rico rather than New York is unconstitutional discrimination. His needs are exactly the same, whether he lives in Brooklyn or San Juan. And as a U.S. citizen, he is entitled to equal protection of the laws. However, the United States argues that the only way for Mr. Vaello-Madero and other residents of the territories to remedy this discrimination “is action by Congress.” But that reasoning ignores the fact that residents of the territories have virtually no real representation. In the Senate, they have no representation at all. In the House, residents of the territories have only a single non-voting delegate. People like Mr. Vaello-Madero cannot “resort to the polls” “for protection against abuses by [the] legislature.” Living in a territory the United States has held in limbo for over a century, representation in Congress remains closed to them by constitutional design.
Despite this systemic second-class treatment, residents of Puerto Rico, like those of Guam, American Samoa and the U.S. Virgin Islands, are entitled to equal protection of the laws of the United States.
In 2006, the FBI ordered an informant to pose as a Muslim convert and spy on the congregants of several large, diverse mosques in Orange County, California. The agent, Craig Monteilh, professed his conversion before hundreds of congregants during the month of Ramadan. Renaming himself “Farouk,” the informant quickly made friends and impressed members of the community with his seeming devotion. The whole time, he was secretly recording conversations and filming inside people’s homes, mosques, and businesses using devices hidden in everyday objects, like the keychain fob of his car keys.
Among those subjected to FBI spying were Sheik Yassir Fazaga, the imam of the Orange County Islamic Foundation (OCIF), and Ali Uddin Malik and Yasser Abdelrahim, congregants at the Islamic Center of Irvine (ICOI). Together, they sued the FBI in 2011 for unlawfully targeting Muslim community members in violation of their constitutional rights to religious freedom and privacy. The FBI attempted to stop the litigation of the plaintiffs’ religious discrimination claims by arguing that further proceedings could reveal state secrets. After an appeals court ruled in the plaintiffs’ favor in 2019, the FBI appealed to the Supreme Court, which will hear the case on Nov. 8.
Ahead of their Supreme Court hearing, the three plaintiffs joined At Liberty to discuss how FBI surveillance impacted their lives and communities, how the harmful effects linger 15 years later, and what they hope to achieve in challenging the FBI.
In 2006, Monteilh reached out to Sheik Fazaga to discuss his apparent interest in converting to Islam. He said he was of Syrian and French descent and wanted to embrace his roots. Days later, he announced his conversion at Friday prayer, reciting the shahada (the Islamic declaration of faith) before hundreds of congregants at the mosque. Monteilh renamed himself Farouk and started attending prayers multiple times per day, every day.
“6:00 a.m all the way to 10:00 p.m.,” says Hussam Ayloush of the Council on American-Islamic Relations – California (CAIR-CA), one of the organizations serving as co-counsel on the case, along with the ACLU. “That’s a lot of dedication to come to these prayers. Very impressive.”
Word spread about the new convert within ICOI and other mosques in the Orange County area, which Monteilh also frequented on a regular basis. Congregants reached out to him to introduce themselves, buying him books on Islam, showing him the movements of prayers, taking him out for tea, and inviting him into their homes for dinners, where he would often meet congregants’ families and friends. Many young congregants were drawn to him, dazzled by his stories about working as a personal trainer in Hollywood and the NFL. “We spent the time either hanging out, talking, praying, playing FIFA, or watching [the] news every once in a while,” says Abdelrahim.
Conversations about working out and other small talk eventually dissipated, however, as Monteilh began to talk about violence, including by expressing a warped interpretation of jihad, a term referring to any internal or external struggle facing an individual or community. Younger members of the congregation, like Malik and Abdelrahim, noticed the strange shift but initially gave him the benefit of the doubt. Some thought that Monteilh’s comments were based on misguided ignorance about Islam. Amidst widespread, post-9/11 Islamophobia, it wasn’t hard to believe. But when congregants tried to explain to Monteilh that Islam does not condone violence, he pushed back.
One day, while returning to his car on his way out from a last-minute chiropractor’s appointment, Abdelrahim was met by FBI agents waiting for him in the parking lot. “Obviously, I was a little shocked,” he says. “A lot of questions [were] going through my mind. Number one, how do you know I’m here?” The FBI agents took him to a nearby Starbucks, where they questioned him about his opinions on terrorism. “I really was laughing at the question itself because it’s just absurd,” says Yasser. At that point, he realized they had been spying on him.
Soon it became evident that the convert was not who he said he was, and that he was potentially dangerous. Congregants reported Monteilh to community leaders, the police, and eventually the FBI itself. But they didn’t learn he was an informant until two years later, when he was publicly identified and began to speak openly about the operation.
They learned that between 2006 and 2007, Monteilh had indiscriminately gathered names, phone numbers, and email addresses as he secretly filmed and recorded congregants in their homes, mosques, and businesses. He used hidden cameras and recording devices to spy on community members even when he was not physically present. Monteilh’s FBI handlers told him they had a listening device in Fazaga’s office, where he had confidential conversations with congregants who sought his guidance in therapy sessions. Monteilh also had an audio recorder hidden in the keychain fob of his car keys, which he would leave behind, seemingly by accident, in the prayer hall. When anybody found the keys, they would bring them to the imam’s office, which served as a lost and found. There, the device could potentially record confidential conversations between the imam and people who sought his guidance.
“I promised my clients confidentiality,” says Sheik Fazaga. “I don’t say anything without their permission. But to know that the FBI was actually recording these sessions, that is illegal, it is unethical, it is not constitutional, and it puts a lot of people’s lives in jeopardy and their well-being and their rights of privacy.”
The FBI had been surveilling Muslims in Southern California, home to one of the largest Muslim populations in the United States, since late 2001. The agency had created a list of names, religious leaders and mosques, and would often send agents to show up unannounced at people’s homes and question them about their religious practice without any discernible relationship to criminal activity.
“FBI agents told [Monteilh] to focus on people who are more devout, like Ali Malik, who was wearing religious clothing, and like Sheik Fazaga because he was a religious leader,” says Ahilan Arulanantham, one of the lead attorneys on the case. “Once we learned that information, we filed a lawsuit challenging the FBI’s conduct on constitutional and federal statutory grounds.”
While Monteilh left the Orange County Muslim community after community members took action, his impact was widespread and enduring. Sheik Fazaga had worked for years to foster trust between congregants and the U.S. government in the aftermath of 9/11, even inviting the FBI to speak with members of his mosque in a community town hall. “They looked us all in the eyes and assured us unequivocally that they were not spying on us,” says Fazaga. “We trusted them. But they lied, and our sacred community was shaken to its core.”
Since 9/11, the government has frequently abused the “state secrets privilege” to escape accountability, including by shutting down lawsuits by survivors of torture, ending litigation of unlawful government surveillance, and covering up misconduct and other abuses in the name of national security.
“The government cannot hide behind state secrets to pretend everything is national security,” says attorney Ahilan Arulanantham. “An independent judge or entity should be able to sort through the evidence and decide whether this constitutes state secrets or not.”
The federal district court accepted the FBI’s state secrets argument and dismissed the plaintiffs’ claims that the FBI unlawfully targeted them based on their religion. The Ninth Circuit Court of Appeals then disagreed and instructed the district court to consider the religious discrimination claims under procedures mandated by Congress in the Foreign Intelligence Surveillance Act, which specify how courts should handle cases involving surveillance conducted for national security purposes. The FBI appealed the case, and the Supreme Court agreed to hear it. Oral arguments will be held on Nov. 8.
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The plaintiffs are represented by the Center for Immigration Law and Policy at UCLA School of Law, the ACLU of Southern California, the American Civil Liberties Union, the Council for American-Islamic Relations – California (CAIR-CA), and the law firm of Hadsell Stormer Renick & Dai.
