On March 4, 2022, the U.S. Supreme Court decided Federal Bureau of Investigation v. Fazaga, No. 20-828, holding that Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 (FISA), which establishes procedures for determining the lawfulness and admissibility of surveillance information gathered by the government pursuant to FISA, does not displace the state secrets privilege.
Respondents, three members of Muslim communities in southern California, brought suit claiming that the FBI illegally surveilled them because of their religion, in violation of their statutory and constitutional rights. The district court dismissed most of their claims in response to the government’s assertion of the state secrets privilege and dismissed their remaining claim on other grounds. The Ninth Circuit reversed, and the Supreme Court granted certiorari to decide whether Section 1806(f) of FISA displaces the state secrets privilege and its dismissal remedy with respect to information gathered via electronic surveillance.
The Supreme Court reversed and held that Section 1806(f) does not displace the state secrets privilege for two reasons. First, the absence of any reference to the state secrets privilege in FISA strongly suggests that the statute did not alter the privilege in any way. That conclusion is in keeping with the general rule that Congress must use clear statutory language if it wishes to abrogate or limit the scope of the privilege.
Second, operation of Section 1806(f) is compatible with the state secrets privilege because the statute and privilege involve different inquiries, forms of relief, and procedures. Accordingly, the Court held that Section 1806(f) does not displace the privilege and remanded for further proceedings.
Justice Alito delivered the opinion for a unanimous Court.