A legal case about the use of government surveillance in mosques has been on hold for 36 months. | Eduardo Munoz Alvarez/AFP/Getty Images Legal Mosque surveillance case languishes amid concerns over court backlog A ruling could provide guidance about what surveillance tactics are legal in places of worship, a loaded issue under President Donald Trump.

A legal case that could have profound consequences for the government’s ability to conduct surveillance inside mosques and other houses of worship has been stalled at a federal appeals court for more than three years with no sign of progress.

The unexplained delay is rekindling questions about the timeliness of decisions from the San Francisco-based 9th Circuit, an issue that has drawn President Donald Trump’s ire. Critics have cited the court’s struggle to keep up with its massive docket as a major reason to split up the court, which covers nine Western states and about 20 percent of the U.S. population.


The case also touches on an issue at the center of Trump’s campaign — surveilling Muslims. While campaigning, the president called for greater monitoring of mosques, proclaiming, “We’ve had it before and we’ll have it again.” It’s unclear whether the FBI has altered its surveillance practices in terror probes since Trump took office, and a ruling in the long-pending case could provide guidance to both the FBI and its critics about what tactics are legally acceptable.

The unresolved appeal centers around an FBI-led undercover operation at southern California mosques. The key informant in the case, Craig Monteilh, alleged that officials told him to engage in dragnet surveillance of Muslims in Orange County and Los Angeles, spurring the American Civil Liberties Union to file a lawsuit in 2011. The advocacy group argued that the FBI was using illegal methods to monitor mosque members in the operation, and questioned how federal agents take into account religious faith during an investigation.

But the case has languished since then. Several lawyers who track the 9th Circuit’s challenges called the glacial pace in the mosque surveillance dispute hard to fathom, even in light of that court’s reputation for sluggish resolution of cases.

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“Everything is hanging fire when an opinion takes so long to come out, so, is it troubling? Yes,” said University of Pittsburgh law professor Arthur Hellman, who has studied the delays at the 9th Circuit.

“I think even for the 9th Circuit, which takes the longest time in the country, this is extremely slow,” University of Richmond law professor Carl Tobias added. “While it’s been slow for a long time, it’s doing better. … This one just seems pretty extraordinary.”

Hellman said neither of the 9th Circuit judges on the case — Marsha Berzon and Ronald Gould — have reputations for taking unusually long to render decisions. A visiting district court judge, George Steeh of Detroit, also joined the appellate panel. All are Clinton appointees.

Hellman said the mosque surveillance case has been pending for so long that it should have triggered a 9th Circuit procedure where judges have to report to their colleagues on cases submitted for more than nine months without a decision.

A 9th Circuit spokesman, David Madden, declined to comment on the languishing case but said it was not representative of the progress the court has made speeding up its docket.

“The court has been steadily improving case processing times,” Madden said. “The improvements reflect a concerted effort to remove or resolve older, stalled cases while expediting disposition of matters ready for panel consideration.”

In the fiscal year that ended in September, the median time for resolving a 9th Circuit appeal on the merits was 11.7 months, down from 13 months in 2017 and 15.2 months in 2016, Madden said.

Those numbers showed the 9th Circuit tied with the Boston-based 1st Circuit for slowest on that measure in 2017, the last year for which nationwide statistics are available.

Critics have slammed the 9th Circuit for its sluggishness. House and Senate committees both held hearings last year on splitting up the circuit. Sen. Jeff Flake (R-Ariz.) and Arizona Gov. Doug Ducey, also a Republican, blasted the court as “punishingly slow.”

However, the 36-month wait in the mosque surveillance case seems like an outlier even for the 9th Circuit. Statistics show the bulk of the delay in the 9th Circuit typically comes before getting a case to argument, with decisions usually coming fairly promptly after judges hold an in-person session to hear from lawyers for both sides.

A 2017 report showed the 9th Circuit taking an average of just 1.2 months to render a decision after oral arguments, faster than the 2.6 month national average. The 9th Circuit was outpaced on that measure only by the New York-based 2nd Circuit, which had a median time of 0.7 months to act after arguments.

The mosque surveillance case has had that argument, all the way back in 2015, over four years after the case was originally filed in February 2011.

Along the way, the case has hit other roadblocks. In August 2012, when U.S. District Court Judge Cormac Carney — a George W. Bush appointee — issued a split decision, tossing out claims against the U.S. Government and the FBI on “state secrets” grounds. But Carney also allowed part of the suit to continue against individual law enforcement officers, including FBI agents.

Both sides appealed, and the case lingered for about three years before finally being argued in front of a three-judge panel in Pasadena, Calif., in December 2015. In all, more than six years have now elapsed since the appeal was opened and no decision has been rendered.

Among those slamming the 9th Circuit for its delays is Trump, although he made clear his grievances with the court go well beyond its pace.

“A terrible, costly and dangerous disgrace. It has become a dumping ground for certain lawyers looking for easy wins and delays. Much talk over dividing up the 9th Circuit into 2 or 3 Circuits. Too big!” Trump wrote on Twitter last month.

With the passage of time, some lawyers involved in the mosque surveillance litigation have moved on. The attorney who defended the FBI in the case, Doug Letter, left the Justice Department nearly a year ago after a four-decade career in government service. He said he’s utterly baffled by the lack of a ruling.

“To be honest, I have absolutely no idea why the 9th Circuit did not long ago rule on this case,” Letter said in response to a query from POLITICO this week. “It’s very, very unusual for a court of appeals to take more than three years and still not decide a case.”

The lead lawyer for the ACLU on the case, Ahilan Arulanantham, was tight-lipped about the delay. “We look forward to receiving a decision,” he said.

Last year, he was a bit more voluble on the subject. “The length of time that goes by makes you feel sometimes like it may never be coming,” he said.

Arulanantham, too, has had an eventful time since the case was argued several years ago. About nine months after the judges heard from the attorneys, he won a MacArthur Foundation “genius” grant for his work advocating for immigrant rights.

The lead plaintiff in the long-pending case, southern California imam Yassir Fazaga, did not respond to requests for comment.

The case has opened up debates over what surveillance tactics the FBI can use in an investigation and under what circumstances.

Typically, no court approval is required to send out an informant wearing a recording device, although the FBI has special internal procedures for investigations centered on mosques or churches. However, the suit alleges that Monteilh used a key fob to record conversations in an Irvine, Calif., mosque and elsewhere — sometimes by leaving the device behind when he was not present. That constituted illegal electronic surveillance under federal law, the suit contends.

In his ruling six years ago, Carney dismissed some of the suit’s broader allegations about unconstitutional targeting of religion, but said the illegal surveillance claims could proceed.

The suit was the product of increasing discomfort in the U.S. Muslim community with FBI tactics in search of potential terrorists during the George W. Bush and Obama administrations. Many Muslim leaders criticized the agency for sting operations aimed at teenagers who used violent rhetoric but may not have been prompted to act on it without the intervention of FBI informants and undercover agents.

Under Trump, discomfort in the Muslim community has only grown. In addition to calling for greater surveillance of mosques, Trump has made several attempts to ban travelers to the U.S. from Muslim-majority countries.

Both the FBI and its critics say a 9th Circuit ruling could help resolve some of the uncertainty around surveillance of religious institutions.

Whatever the reason for the delay, the urgency the court displayed about the case at arguments three years ago, seems to have been lost.

“I’m going to be very strict about time, which I’m not usually,” Berzon told the lawyers then. “Therefore, please watch your time.”