In March, the Supreme Court issued its decision in Federal Bureau of Investigation v. Fazaga, No. 20-828, holding that the state secrets privilege—and its dismissal remedy—applies to cases that may also be subject to the judicial review procedures set forth in the Foreign Intelligence Surveillance Act (“FISA”).  In so holding, the Court reversed the Ninth Circuit’s 2020 ruling that FISA displaces the state secrets privilege in cases involving electronic surveillance.

The state secrets privilege is “a Government privilege against court-ordered disclosure of state and military secrets,” Op. at 2, and under certain circumstances, it may require a court to dismiss claims that implicate national security issues animating the assertion of the privilege.  FISA’s judicial review procedure, on the other hand, creates a mechanism for a court to review in camera and ex parte materials related to surveillance conducted pursuant to FISA, and determine whether such surveillance was “lawfully authorized and conducted.”  50 U.S.C. § 1806(f).  The key issue in Fazaga concerned the interplay of these two mechanisms for addressing litigation implicating sensitive issues of national security.

In Fazaga, Respondents filed suit against the FBI, alleging that it conducted illegal surveillance over a Muslim community in California.  The Government moved to dismiss their complaint, arguing in part that the state secrets privilege requires dismissal of most of Respondents’ claims.  The District Court granted the Government’s motion, concluding that litigating the relevant claims “would require or unjustifiably risk disclosure of secret and classified information.”  884 F. Supp. 2d 1022, 1028-29 (CD Cal. 2012).  On appeal, the Ninth Circuit reversed, holding “Congress intended FISA to displace the state secrets privilege and its dismissal remedy with respect to electronic surveillance.”  965 F. 3d 1015, 1052 (2020).  The Circuit partially based its holding on the conclusion that FISA’s judicial review procedure, § 1806(f), “speak[s] quite directly to the question otherwise answered by the dismissal remedy sometimes required by the common law state secrets privilege,” which is “animated by the same concerns” as, and “triggered” by a similar process to, the state secrets privilege.  Id. at 1045.  The Government sought certiorari, which the Supreme Court granted “to decide whether § 1806(f) displaces the state secrets privilege.”  Op. at 7.

The Court’s unanimous decision, authored by Justice Alito, concluded that the review procedure created by FISA does not displace the state secrets privilege, for two reasons:  First, the “absence of any statutory reference to the state secrets privilege [in § 1806(f)] is strong evidence that the availability of the privilege is not altered in any way,” and “the privilege should not be held to have been abrogated or limited unless Congress has at least used clear statutory language.”  Id. at 9.  Second, contrary to the holding of the Ninth Circuit, “nothing about the operation of [§ 1806(f)] is at all incompatible with the state secrets privilege.”  Id.  They are invoked in different cases, “require courts to conduct different inquiries,” “authorize courts to award different forms of relief,” and “direct the parties and the courts to follow different procedures.”  Id. at 10.  For example, the FISA procedure asks whether the surveillance at issue was conducted lawfully, whereas the state secrets privilege asks whether disclosure of necessary evidence would “harm national-security interests.”  Id. at 11.  The privilege may require dismissal of certain claims, whereas § 1806(f) provides no such remedy.  Similarly, the FISA procedure allows in camera, ex parte review of surveillance materials, but the state secrets privilege may preclude such review all together.

The Court emphasized that its “decision addresses only the narrow question of whether § 1806(f) displaces the state secrets privilege.”  Id. at 13.  It did not consider whether § 1806(f) actually applies to the underlying action—the question that the parties focused on in their arguments before the Court—nor did it decide “whether the Government’s evidence is privileged or whether the District Court was correct to dismiss [R]espondents’ claims on the pleadings.”  Id.