## Facts

- Three Muslim residents of Southern California—Yassir Fazaga, Ali Uddin Malik, and Yasser AbdelRahim—filed a putative class action against the FBI, federal officials, and the United States.
- Plaintiffs alleged the FBI engaged in unlawful, religion-motivated surveillance of Muslim communities, including attendees of the Islamic Center of Irvine and other area mosques.
- According to the complaint, the FBI recruited a confidential informant (Craig Monteilh) who pretended to convert to Islam, joined the community, and recorded interactions.
- Plaintiffs alleged the informant collected phone numbers or email addresses for thousands of Muslims and made hundreds of hours of audio and video recordings from inside mosques, homes, and other private settings.
- Plaintiffs asserted constitutional and statutory claims, including claims under the First Amendment, the equal protection component of the Fifth Amendment’s Due Process Clause, RFRA, the Privacy Act, the Fourth Amendment, FISA (including 50 U.S.C. § 1810), and the Federal Tort Claims Act.
- The Government invoked the state secrets privilege through a formal assertion by the Attorney General, arguing that litigating the case would require, or create an unjustified risk of, disclosing classified counterintelligence information.
- The district court sustained the state secrets assertion and dismissed most claims on that basis; it dismissed remaining claims on other grounds.
- The Ninth Circuit reversed in relevant part, concluding that FISA § 1806(f) displaced the state secrets privilege for at least some claims and directing the district court to use § 1806(f)’s in camera, ex parte procedure.
- The Supreme Court granted certiorari to review whether § 1806(f) overrides the state secrets privilege and permits courts to decide the merits using material the Government claims is privileged.

## Issues

1. Whether FISA § 1806(f) displaces, overrides, or otherwise limits the federal state secrets privilege.
2. Whether § 1806(f) authorizes a district court to resolve the merits of a surveillance-related civil suit in camera and ex parte by considering material the Government claims is protected by the state secrets privilege.

## Decision

- The Supreme Court held unanimously that FISA § 1806(f) does not displace or alter the availability or scope of the state secrets privilege.
- The Court rejected the Ninth Circuit’s conclusion that § 1806(f) supplanted the privilege in this setting.
- The Court relied on the statutory text and structure: § 1806(f) creates a procedure for in camera, ex parte review in specified circumstances, but it contains no reference to the state secrets privilege and does not clearly abrogate a long-recognized common-law privilege.
- The Court explained that § 1806(f) and the state secrets privilege address different questions: § 1806(f) concerns how a court determines whether surveillance was lawfully authorized and conducted in the covered contexts, while the state secrets privilege concerns whether disclosure (and sometimes even judicial examination) would create a reasonable danger to national security.
- The Court vacated the Ninth Circuit’s judgment and remanded for further proceedings consistent with its opinion.
- The Court did not decide whether § 1806(f) is triggered for any particular claim here, whether any specific evidence is privileged, or whether dismissal is required; those issues were left to the lower courts on remand.

## Legal Principles

- A longstanding federal evidentiary privilege is not displaced by statute absent clear congressional direction; silence in the statutory text generally is not enough to negate the privilege.
- FISA § 1806(f) provides an in camera, ex parte procedure in certain situations involving “aggrieved” persons and information obtained or derived from electronic surveillance, aimed at determining whether the surveillance was lawfully authorized and conducted.
- The state secrets privilege allows the Government to prevent disclosure of information when there is a reasonable danger that disclosure would harm national security; in some circumstances, the privilege can bar use of evidence and can be case-dispositive.
- The procedures in § 1806(f) do not categorically replace other evidentiary privileges; § 1806(f) and the state secrets privilege may both be relevant in the same litigation.
- Appellate courts may not treat § 1806(f) as a general authorization to override the state secrets privilege and decide merits questions by reviewing privileged material in chambers.

## Conclusion

In Federal Bureau of Investigation v. Fazaga, the Supreme Court unanimously held that FISA § 1806(f) does not displace or narrow the federal state secrets privilege, vacated the Ninth Circuit’s contrary judgment, and remanded for lower courts to address remaining questions about § 1806(f)’s application and any valid privilege assertions.


Federal Bureau of Investigation v. Fazaga, 595 U.S. 344, 142 S. Ct. 1051 (2022)