FBI v. Fazaga
The Supreme Court ruled unanimously that a provision of the Foreign Intelligence Surveillance Act does not eliminate the government's long-standing right to invoke the 'state secrets' privilege, reversing a Ninth Circuit decision that had allowed a lawsuit by Muslim Americans to move forward.
The ruling sends the case back to lower courts, where the Muslim community members who say the FBI illegally spied on them must still overcome the government's secrecy claims before their case can proceed.
How it got here: A federal district court dismissed most claims on state secrets grounds; the Ninth Circuit reversed, holding FISA displaced the privilege; the government asked the Supreme Court to step in and the Court agreed to hear it.
The Case in Depth
What happened
Three Muslim residents of Southern California — Yassir Fazaga, Ali Malik, and Yasser Abdel Rahim — sued the FBI after an informant allegedly infiltrated their communities and gathered thousands of hours of recordings and personal data indiscriminately, targeting people because of their religion. They claimed the surveillance violated the Constitution, federal statutes, and their religious freedoms. The government responded by asserting the "state secrets" privilege, arguing that litigating the case would force the disclosure of classified national-security information.
The question before the Court
Does a federal surveillance law's special review procedures override the government's long-standing "state secrets" protection — meaning the government could no longer use that privilege to seek dismissal of a lawsuit challenging illegal spying?
The Court's answer
No — the Foreign Intelligence Surveillance Act's §1806(f) does not eliminate or replace the government's state secrets privilege.
The Court gave two reasons. First, FISA never mentions the state secrets privilege anywhere in its text, and Congress must use clear statutory language to take away an established legal protection — whether it is rooted in common law or the Constitution. Silence is not enough. Second, even reading §1806(f) as broadly as the plaintiffs urged, the statute and the privilege operate so differently — asking different questions, authorizing different remedies, and following different procedures — that no conflict between them exists. Because they can coexist, Congress cannot be said to have intended one to displace the other.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
People who believe the government illegally surveilled them face a significant obstacle: even if a federal surveillance law offers them a path to challenge the spying, the government can still invoke its separate "state secrets" power to seek dismissal. Courts hearing these cases must navigate both legal frameworks, and plaintiffs may find their claims dismissed before any evidence is examined.
What changes now
The case goes back to lower courts, which must now decide — without the benefit of the Ninth Circuit's FISA-displaces-privilege ruling — whether the government's state secrets claims justify dismissal of the plaintiffs' remaining claims, and on what terms. The Court left open whether dismissal on the pleadings was actually proper here, and did not decide which party's reading of §1806(f) is correct, so those questions remain live on remand.
What this does not decide
The Court did not decide whether the government's evidence in this case is actually privileged, whether the district court was right to dismiss the claims on the pleadings, or which party's interpretation of when §1806(f) is triggered is correct. Those questions all remain open for the lower courts.
How the Court got there
The legal reasoning, step by step
- The Court framed the core question as whether FISA's §1806(f) — a provision allowing courts to secretly review surveillance materials to determine whether spying was lawful — was meant by Congress to replace the government's separate 'state secrets' privilege, which allows the government to shield classified information from any court proceeding, potentially getting an entire case dismissed.
- The parties disagreed about when §1806(f) is even triggered: the government said it applies only when the government wants to introduce surveillance evidence in court, while the plaintiffs said it also applies when they seek to challenge or expose that evidence. The Court declined to resolve this dispute, ruling instead that §1806(f) does not displace the state secrets privilege regardless of which reading is correct.
- First textual reason: FISA's text contains no reference to the state secrets privilege — not by name, not by synonym. The Act even includes a clause expressing a desire to leave existing privilege law undisturbed. Under the rule that Congress must speak clearly to abrogate either common-law or constitutionally grounded privileges, this silence weighs heavily against any displacement argument.
- Second structural reason: §1806(f) and the state secrets privilege ask fundamentally different questions. Section 1806(f) directs courts to ask whether the surveillance was lawfully authorized and conducted. The state secrets privilege, as described in United States v. Reynolds (the 1953 case that established the modern framework), asks whether disclosure of the evidence would harm national security — a question entirely separate from whether the evidence was obtained lawfully.
- The available remedies also differ. Under §1806(f), a court must suppress evidence found to be unlawfully obtained, but has no power to award relief if the surveillance was lawful. Under the state secrets privilege, by contrast, a court may order disclosure of lawfully obtained evidence if secrecy is unnecessary — and may dismiss a case outright even before examining any evidence. These different outcomes reflect different underlying purposes.
- Procedurally, the two frameworks diverge as well: only the Attorney General can invoke §1806(f)'s in camera review, while the state secrets privilege may be asserted by any relevant department head after personal consideration; and unlike §1806(f), the privilege can sometimes bar even a judge's private review of evidence if the government shows a reasonable danger of harmful disclosure. Because the two regimes operate on separate tracks and address different concerns, they can coexist — so FISA did not displace the privilege.
Doctrinal impact
Cases affected by this decision
Reaffirms United States v. Reynolds (345 U. S. 1)
Confirmed as the governing standard for how and when courts may resist government secrecy claims.
Reaffirms General Dynamics Corp. v. United States (563 U. S. 478)
Reaffirmed as authority recognizing the state secrets privilege and its national-security rationale.