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FBI v. Fazaga

Supreme Court of the United States · 2022 · Constitutional Law

Constitutional LawState secrets privilegeForeign Intelligence Surveillance ActFISA50 U.S.C. §1806(f)state secrets privilegeelectronic surveillancenational security

Facts

Respondents alleged that the FBI illegally surveilled them and other Muslims because of their religion through a confidential informant who infiltrated their community and gathered extensive contact information and audio and video recordings. In response to the suit, the Government formally invoked the state secrets privilege, asserting that disclosure could reveal whether individuals were subjects of FBI counterterrorism investigations, the reasons for and results of such investigations, and the sources and methods used. After reviewing public and classified filings, the District Court concluded that litigating most claims would require or unjustifiably risk disclosure of secret and classified information and dismissed them. The Ninth Circuit reversed because it believed §1806(f) displaced the state secrets privilege with respect to electronic surveillance.

Issue

Does 50 U.S.C. §1806(f) of FISA displace or limit the longstanding state secrets privilege when a plaintiff challenges alleged foreign intelligence surveillance? More specifically, did Congress replace the privilege's ordinary operation with §1806(f)'s in camera and ex parte procedures?

Rule

Section 1806(f) does not eliminate, curtail, or modify the state secrets privilege absent clear statutory language. Even if §1806(f) applies broadly, it does not displace the privilege because the statute and the privilege require different inquiries, authorize different relief, and prescribe different procedures.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Seattle, Noor Haddad sues a federal intelligence unit, alleging that agents unlawfully intercepted her international calls under a foreign-intelligence surveillance statute. She argues that the statute's in camera and ex parte review provision necessarily replaces any invocation of the state secrets privilege whenever surveillance legality is challenged in civil litigation.

Which is the best response to Noor's argument?

Explanation. The majority held that §1806(f) does not displace the state secrets privilege. A longstanding privilege is not treated as abrogated or limited without clear statutory language, and the statute's text did not mention the privilege. The Court also said this conclusion holds regardless of whether the privilege is rooted only in common law or also in the Constitution. (Derived from FBI v. Fazaga (n.d.).)