The long-running legal case in Thursday's ruling involves the FBI’s use of a paid informant to infiltrate California mosques in the middle of the last decade. | Mark Wilson/Getty Images Legal Court rejects state secrets claim in FBI mosque surveillance suit

A federal appeals court has ruled that a judge was too deferential to the U.S. government’s national security claims when he dramatically scaled back a lawsuit charging the FBI with conducting illegal and unconstitutional surveillance at Southern California mosques.

The long-awaited decision from a 9th Circuit Court of Appeals panel is a blow to the government’s use of the so-called state secrets privilege to combat lawsuits alleging illegal electronic snooping.


The three appeals court judges unanimously held that the Foreign Intelligence Surveillance Act passed four decades ago limits the executive branch’s authority to shut down litigation that has the potential to expose sensitive national security information.

"The plain language, statutory structure, and legislative history demonstrate that Congress intended FISA to displace the state secrets privilege and its dismissal remedy with respect to electronic surveillance," Judge Marsha Berzon wrote in a 103-page opinion joined by Judges Ronald Gould and George Steeh.

The long-running legal case involves the FBI’s use of a paid informant to infiltrate California mosques in the middle of the last decade. FBI agents and the informer, Craig Monteilh, had a falling out. He later filed a lawsuit and also publicly alleged that he’d been instructed to carry out an intrusive, broad-scale undercover operation that included dating Muslim women and planting recording devices in mosque facilities.

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The ruling issued Thursday came not in Monteilh’s suit but one filed in 2011 by the American Civil Liberties Union on behalf of an imam and two Muslim worshipers, charging that the surveillance was illegal and unconstitutionally intruded on their freedom of religion.

Santa Ana, Calif.-based U.S. District Court Judge Cormac Carney threw out most of the case in 2012, agreeing with government lawyers that allowing the litigation on issues like religious discrimination to proceed would risk exposing sensitive details about why the FBI started what it maintains was an anti-terrorism investigation.

However, the 9th Circuit panel said Carney should have invoked special, secret procedures under FISA to consider the plaintiffs’ claims more in depth.

"We conclude that some of the claims dismissed on state secrets grounds should not have been dismissed outright," Berzon wrote.

President Donald Trump has called for increased surveillance of mosques and Muslim communities in an effort to root out terrorism.

If the Justice Department is dissatisfied with the decision, it could seek review in the Supreme Court or ask a larger, 11-judge 9th Circuit panel to take up the case.

A Justice spokeswoman declined to comment.

ACLU attorney Ahilan Arulanantham welcomed the court’s action.

"The 9th Circuit’s decision is a victory for everyone who believes in the rule of law. It rejects the Government’s request that the courts close their eyes to this shameful chapter of FBI surveillance of Muslims because it was a 'state secret,'" Arulanantham said. "Most important, it creates the possibility of justice for our clients and others who were targeted just because of their religion. We look forward to holding the government accountable before the district court."

The decision raises the possibility that the government’s legal strategy in the case complicated its position and may have contributed to its defeat.

Reacting to liberal criticism of President George W. Bush’s administration’s extensive use of state secrets claims to shut down litigation on surveillance and other topics, President Barack Obama’s appointees reined in that policy, promising to be more sparing in use of the privilege.

That led to a partial invocation of the privilege in the mosque surveillance case, with government lawyers offering to defend the illegal surveillance claims on the merits, but invoking the secrecy privilege to try to obscure the roots of the investigation.

This more nuanced approach may have come back to bite the government Thursday as the 9th Circuit ruled that Carney improperly expanded the state secrets claim beyond what government lawyers sought.

It's unclear if the Trump administration may take a more expansive view of the security interests at stake and try to expand the state secrets assertion. The 9th Circuit panel did leave open the possibility that U.S. officials could raise state secrets arguments again as the case moves forward.

The case has been closely watched because it could provide guidance about how religion can be used as a factor in focusing criminal investigations, including terrorism probes.

However, that definitive guidance might still be years away, if it ever arrives. The saga of the Southern California mosque infiltration, through a program known as Operation Flex, has now spanned three presidencies, with the court proceedings slowing to a glacial pace.

The appeals acted on Thursday were filed about six years ago and the case was argued before the 9th Circuit in December 2015, more than 38 months ago. A decision on an en-banc rehearing by the 9th Circuit could take months more. Consideration at the Supreme Court could also take months, or more than a year if the court agrees to hear the case.

The 9th Circuit’s new ruling didn’t explicitly address the delay, but the voluminous opinion showed the judges considered the issues both complex and weighty.

"The legal questions presented in this case have been many and difficult," Berzon wrote. "We answer them on purely legal grounds, but of course realize that those legal answers will reverberate in the context of the larger ongoing national conversation about how reasonably to understand and respond to the threats posed by terrorism without fueling a climate of fear rooted in stereotypes and discrimination."

