This Report summarizes opinions issued on March 3, 4, and 7 2022 (Part I); and cases granted review on February 28, 2022 (Part II).

Opinion: Federal Bureau of Investigation v. Fazaga,  20-828

Federal Bureau of Investigation v. Fazaga,  20-828. The Court unanimously held that the Foreign Intelligence Surveillance Act of 1978 (FISA) does not displace or otherwise affect the availability or scope of the state secrets privilege, which permits the government to prevent disclosure of information when that disclosure would harm national security interests. Because electronic surveillance relating to foreign intelligence often presents special national security concerns, Congress enacted FISA, which provides special procedures for use when the government wishes to conduct such surveillance.  Under these procedures, the government must apply to, and receive authorization from, a special FISA court. FISA sets forth additional procedures for when the government seeks to use information gathered pursuant to a FISA order in a judicial or administrative proceeding.  Where the government intends to use such information in a proceeding, FISA requires the government to provide notice to any “aggrieved person” (i.e., a person who was the target or subject of electronic surveillance), and allows such a person to move to suppress that evidence on the grounds that it was “unlawfully acquired.” A provision of FISA, 50 U.S.C. §1806(f), establishes procedures for determining the lawfulness and admissibility of FISA evidence. That subsection allows a court to make that determination “in camera and ex parte” if the Attorney General files an affidavit that “disclosure or an adversary hearing would harm the national security of the United States.”  If the court finds that the evidence was unlawfully obtained, it must “suppress” the evidence or “otherwise grant the motion of the aggrieved person.”

This case involves three members of the Muslim community in southern California who claim they were illegally surveilled by the FBI because of their religion. They filed a class action against the United States and FBI raising constitutional and statutory claims. Relying on an affidavit from the Attorney General, the government argued that the complaint should be dismissed because it implicated the disclosure of information that could harm national security interests. The district court dismissed the complaint, but the Ninth Circuit reversed. The Ninth Circuit first affirmed that the procedures in §1806(f) could be used when an aggrieved person “affirmatively challenges, in any civil case, the legality of electronic surveillance or its use in litigation, whether the challenge is under FISA itself, the Constitution, or any other law.” The Ninth Circuit then held that §1806(f)—rather than the state secrets privilege—governed claims relating to national security concerns, and on that basis reversed the district court’s dismissal on state secrets grounds. In an opinion by Justice Alito, the Court reversed and held that the state secrets privilege was not displaced by the FISA procedures.

First, the Court observed that FISA made no reference to the state secrets privilege, and considered this absence “strong evidence that the availability of the privilege was not altered in any way.” The Court noted that, regardless of whether the state secrets privilege was rooted in common law or the Constitution, any abrogation or limitation of the privilege could be accomplished by Congress only through “clear statutory language.” Second, the Court found that application of the state secrets privilege was not incompatible with the operation of FISA. The Court noted that the state secrets privilege would not be invoked in the “great majority” of cases involving FISA because the ordinary application of FISA involved the government seeking to use FISA evidence in a judicial or administrative proceeding (rather than here, where the government was seeking to prevent its use). Even if FISA allowed an aggrieved party to affirmatively seek the disclosure of FISA evidence, there would be no “clash” between FISA and the state secrets privilege.

FISA and the state secrets privilege were not inconsistent, the Court held, for three reasons.  First, FISA and the state secrets privilege “require courts to conduct different inquiries.” Whereas the “central question” under FISA is the lawfulness of the surveillance from which information was obtained, the state secrets privilege is concerned with whether disclosure of information would harm national security interests.  In other words, whether the surveillance was lawful was entirely irrelevant to whether the state secrets privilege would be overcome.  Building on that conclusion, the Court next observed that FISA and the state secrets privilege “authorize courts to award different relief.” The Court noted that, under FISA, a court has no authority to award relief to an aggrieved person if it finds that the evidence was lawfully obtained.  In contrast, a court considering a claim of state secrets privilege may order disclosure of information if it finds that the disclosure would not affect national security—regardless of whether it was lawfully obtained.  Finally, the Court noted that the inquiries under FISA and the state secret privilege were “procedurally different.”  Whereas FISA allows the Attorney General to obtain in camera and ex parte review of surveillance evidence, the state secrets privilege may be invoked not only by the Attorney General but also by the head of the agency that has control over the matter.  Moreover, the state secrets doctrine may be more protective of information:  the state secrets doctrine precludes even in camera review of information where the government shows a “reasonable danger” that compulsion of the information, if divulged, would harm national security interests.

In holding that FISA did not displace the state secrets privilege, the Court declined to address a question raised by the parties relating to the interpretation of §1806(f):  whether §1806(f) applies “only when a litigant challenges the admissibility of the government’s surveillance evidence” in a judicial or administrative proceeding, or whether it also applies, as the plaintiffs sought in this case, where “a civil litigant seeks to obtain such secret information.”

[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]