FBI v. Fazaga: Supreme Court Examines Interplay of State Secrets Privilege and the Foreign Intelligence Surveillance Act

FBI v. Fazaga: Supreme Court Examines Interplay of State Secrets Privilege and the Foreign Intelligence Surveillance Act

Legal Sidebari

FBI v. Fazaga: Supreme Court Examines
Interplay of State Secrets Privilege and the
Foreign Intelligence Surveillance Act
January 12, 2022
On November 8, 2021, the Supreme Court heard oral arguments in Federal Bureau of Investigation (FBI)
v. Fazaga, a case that explores the circumstances in which a federal court may examine classified
information in a civil lawsuit in order to review the legality of certain government surveillance activities.
The plaintiffs in Fazaga are three Muslim individuals who allege that the FBI directed a confidential
informant to conduct surveillance at the plaintiffs’ homes, businesses, and places of worship based purely
on their religious identity. Such surveillance was conducted under the Foreign Intelligence Surveillance
Act of 1978 (FISA), which authorizes, among other things, electronic surveillance and physical searches
if there is probable cause to believe that the targets are agents of a foreign power. The plaintiffs sued the
government alleging various constitutional and statutory claims. The plaintiffs also sued several FBI
officials in their individual capacities pursuant to Section 110 of FISA (50 U.S.C. § 1810) which provides
a civil remedy for an “aggrieved person . . . who has been subjected to an electronic surveillance” in
violation of federal law.
The State Secrets Privilege
In response to the allegations asserted by the plaintiffs, the government argued that the surveillance was
based on other factors besides the plaintiffs’ religion, but that they could not disclose the applications and
materials supporting the FISA orders because of the sensitive national security information contained
therein. In formal terms, the government invoked the “state secrets privilege” which is a common law
doctrine under which information may be protected from compelled disclosure if a court finds that there is
a “reasonable danger” that such disclosure “will expose military matters which, in the interest of national
security, should not be divulged.”
In the seminal 1953 case of Reynolds v. United States, the Supreme Court upheld the use of the state
secrets privilege to protect classified information from disclosure. In Reynolds, the Court attempted to
balance the competing interests of a plaintiff’s need for evidence and the government’s national security
interests. The Court held that, while the privilege requires some deference to the executive branch, an
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independent evaluation of the claim of privilege is necessary so as not to abdicate control over evidence
“to the caprice of executive officers.” As part of this balancing, a court may go so far as to require the
production of the evidence in question for in camera (in chambers) review where the court has found that
the non-government party’s need for the information is high. However, if a court can determine, from all
of the circumstances presented in the case, that the privilege is appropriate, the Supreme Court held in
Reynolds that judges should not further “jeopardize the security which the privilege is meant to protect by
insisting upon an examination of the evidence, even . . . alone, in chambers.”
Section 106 of FISA
More recently, lower courts have explored whether the balancing test described in Reynolds may be
modified by legislation enacted by Congress. For example, FISA provides special procedures to be used
when courts are asked to evaluate the legality of a FISA order. Specifically, Section 106(f) of FISA directs
that the court “shall . . . review in camera and ex parte the application, order, and such other materials
relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved
person was lawfully authorized and conducted.”
In Fazaga, the plaintiffs argued that these FISA-specific provisions requiring in camera review should
prevail over the traditional procedures described in Reynolds. The district court rejected the plaintiffs’
arguments and instead applied the traditional Reynolds standard. After considering declarations made by
the relevant government officials, but without examining the underlying evidence itself, the district court
found that disclosure would present a sufficient risk to national security and subsequently dismissed the
majority of their claims, except those brought against the individual FBI agents.
On appeal, the Ninth Circuit held that “the district court should have relied on FISA’s alternative
procedures for handling national security information” which require the court to examine the FISA
application and other material in camera and ex parte. Specifically, the Ninth Circuit held that Congress
had displaced the common law state secrets privilege in Reynolds “as applied to electronic surveillance
within FISA’s purview” and reinstated the plaintiffs’ claims alleging unlawful searches and religious
discrimination. The government petitioned the Supreme Court to review this decision, and the Supreme
Court granted the government’s request.
Arguments at the Supreme Court
In its briefs and at oral argument, the government argued that the special in camera procedures enacted in
FISA do not clearly apply to suits like the ones brought by the plaintiffs in Fazaga. Specifically, the
government contended that the in camera procedures described in FISA appear in Section 106 (50 U.S.C.
§ 1806), which principally addresses circumstances in which information derived from FISA is to be used
in a trial, hearing, or other proceeding against an individual by the government, such as in a criminal
prosecution. In contrast, the plaintiffs in Fazaga are not seeking to block government’s use of the
information derived from FISA, but are challenging the lawfulness of the surveillance in a proceeding
against the government. Therefore, the government argued that the special procedures to be used in
actions such as criminal prosecutions do not clearly apply to civil suits brought against the government,
and that the issue of disclosures in civil suits against the government should continue to be resolved
pursuant to Reynolds.
In response, the respondents pointed to the text of Section 106(f) which states that FISA’s in camera
procedures expressly apply “whenever any motion or request is made by an aggrieved person . . . to
discover or obtain applications or orders or other materials relating to electronic surveillance” under the
Act. In respondents’ view, this broad language of applicability undercuts the government’s argument that

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FISA’s in camera procedures were intended to be available only in actions against an aggrieved person.
In the decision below, the Ninth Circuit had similarly observed that:
It would make no sense for Congress to pass a comprehensive law concerning foreign intelligence
surveillance, expressly enable aggrieved persons to sue for damages when that surveillance is
unauthorized, . . . and provide procedures deemed adequate for the review of national security-
related evidence, . . . but not intend for those very procedures to be used when an aggrieved person
sues for damages under FISA's civil enforcement mechanism.
During oral argument in Fazaga, Justice Sotomayor also expressed a concern that the government’s
position could be “rendering [the civil remedy in] Section 1810 a nullity” if the government can rely on
Reynolds to exclude evidence of allegedly unlawful surveillance in civil suits.
The respondents also argued in the alternative that, even if FISA does not displace Reynolds, the district
court should not have automatically dismissed their suit. The respondents acknowledged that the Court
has recognized that the underlying subject matter of some lawsuits is so intrinsically tied to national
security that courts lack jurisdiction even to hear the case. For example, in the 1876 case of Totten v.
United States, the Court dismissed a suit against the United States brought by a Union spy that alleged
that the government had breached its espionage contract with him. The Court held that any litigation
involving the contract would unavoidably require disclosure of the secret terms of that espionage contract.
In 2010, the Supreme Court reaffirmed the Totten form of the state secrets privilege, holding that if full
litigation of a defense “‘would inevitably lead to the disclosure of” state secrets, . . . neither party can
obtain judicial relief.”
In contrast, with the Totten subject-matter privilege, the Reynolds privilege is evidentiary in nature and
generally is not understood to require automatic dismissal of a suit; instead, only “[t]he privileged
information is excluded and the trial goes on without it.” Respondents in Fazaga contended that they
must be afforded an opportunity to make their case without the excluded evidence. Specifically, even
without the privileged information, they have argued that they may be able to state a claim for relief based
on what they and their witnesses “saw the informant do, as well as other information made publicly
available more than a decade ago, including the informant’s own detailed declarations.”
Still, even under Reynolds, there may be situations in which the privileged evidence is so central to the
case that the plaintiff cannot make a claim using non-privileged evidence and dismissal is warranted. For
example, the U.S. Court of Appeals for the Fourth Circuit recently held in Wikimedia Foundation v.
National Security Agency, that FISA did not displace the state secrets privilege, largely based on similar
arguments to those that the government is making in Fazaga. The Fourth Circuit then went on to hold that
the privileged state secrets were so central to the proceeding that “it cannot be litigated without
threatening their disclosure” and dismissed the suit.
Considerations for Congress
As the Court explained in Reynolds, cases involving the state secrets privilege invariably present a
conflict between the interests of a litigant in having an opportunity to pursue legal remedies and the
interests of the government in protecting sensitive national security information. The core legal issue
presented in Fazaga is one of statutory interpretation, asking whether FISA displaces the state secrets
doctrine only when the government is using FISA information in proceedings against an aggrieved
person, or more broadly in any litigation where an aggrieved person seeks to discover or obtain FISA
applications, orders, or information. If the Court decides the former, it may be more difficult for persons
who believe they were unlawfully surveilled to have those claims adjudicated. On the other hand, if the
Court finds that FISA displaces Reynolds more broadly, that holding could affect the government’s
decisions regarding when to share FISA-derived information amongst federal agencies in order to reduce
the number of situations in which FISA applications, orders, and other material could become subject to

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discovery or in camera review. Because this is a largely statutory issue, if Congress wishes, it could
potentially respond to a decision in Fazaga by amending FISA to clarify whether the in camera
procedures do or do not apply in lieu of the Reynolds privilege.

Author Information

Edward C. Liu

Legislative Attorney

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