FBI v. Fazaga
Headline: Court rules FISA’s in‑court review provision (§1806(f)) does not displace the state‑secrets privilege, reversing the Ninth Circuit and keeping secrecy protections available in surveillance‑related lawsuits.
Holding: The Court held that FISA’s §1806(f) does not displace the longstanding state secrets privilege, reversing the Ninth Circuit and leaving the privilege available in cases involving alleged FISA surveillance.
- Keeps state secrets privilege available to block disclosure in national‑security lawsuits.
- Reverses Ninth Circuit and sends the case back for further proceedings.
- Limits plaintiffs’ ability to obtain secret surveillance materials in some cases.
Summary
Background
Three Muslim residents of southern California sued the FBI and other Government officials, alleging the FBI used an informant to conduct broad surveillance of Muslim communities in violation of law. The Government invoked the long‑standing state secrets privilege and asked the trial court to dismiss most claims because litigating them would risk exposing classified counterintelligence information. The District Court dismissed most claims; the Ninth Circuit reversed, concluding a FISA provision (§1806(f)) displaced the privilege.
Reasoning
The Supreme Court considered whether §1806(f) of the Foreign Intelligence Surveillance Act replaces the state secrets privilege. The Court held it does not. The opinion explains that FISA does not mention the state secrets privilege and that Congress would need to use clear language to limit such a long‑standing secrecy protection. The Court also found that §1806(f) and the state secrets privilege serve different legal questions, offer different remedies, and use different procedures — for example, §1806(f) allows judge‑only, sealed review (called in camera and ex parte) when the Attorney General certifies harm, while the privilege can bar even judge‑only review if disclosure would threaten national security.
Real world impact
The decision reverses the Ninth Circuit and sends the case back to court. It leaves in place the Government’s ability to assert the state secrets privilege in cases that touch on classified intelligence or counterterrorism operations, limiting some paths for plaintiffs to force disclosure of secret surveillance materials.
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