FBI v. Fazaga: Supreme Court Unanimously
Holds That FISA Does Not Displace the State
Secrets Privilege
September 1, 2022
On March 4, 2022, the Supreme Court unanimously decided that the Foreign Intelligence Surveillance
Act of 1978 (FISA) Section 106(f) does not displace the state secrets privilege in Federal Bureau of
Investigation (FBI) v. Fazaga. This Legal Sidebar (1) describes the case’s background, (2) discusses the
Court’s resolution of the dispute regarding the operation of the FISA provision and the privilege, and (3)
highlights some topics that the Court’s order might raise for Congress.
Suit Raised Question of Statutory and Common Law
Interaction
As described in a previous Sidebar, the plaintiffs in Fazaga—three Muslim individuals in southern
California—alleged that the government illegally surveilled their communications because of their
religious views and challenged the lawfulness of the FISA order that authorized such surveillance. This
challenge required the trial court to consider how it would adjudicate the plaintiffs’ claims without risking
disclosure of any sensitive national security information contained within the underlying FISA application
and supporting documents.
Section 106 of FISA expressly allows the government to use information derived from foreign-
intelligence surveillance in prosecutions and administrative proceedings after following specified
procedures. Such use often occurs in a case where the government affirmatively seeks to submit FISA
material in evidence—for example, in proceedings against a criminal defendant. Procedures described in
Section 106(f) require the court to determine the lawfulness of such surveillance by examining the
relevant FISA surveillance application, supporting affidavits, and information “ex parte” and “in camera,”
meaning only the judge will review the materials in chambers. If the judge determines that the
surveillance was unlawful, the introduction of evidence derived from that surveillance may be suppressed.
Whether FISA also requires these in camera procedures in civil litigation against the government is a
topic about which circuit courts disagree.
