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
