FBI v. Fazaga

Whether Section 1806(f) displaces the state-secrets privilege and authorizes a district court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence.

Respondents asserted a claim of constitutional and legislative violations after Petitioners used a confidential informant to covertly gather personal information about Muslim citizens and video recordings of their community/religious activities. Petitioners asserted state-secret privilege and submitted classified declarations to justify that disseminating the information would reasonably be expected to harm national security. The district court upheld the privilege and dismissed the claims. The court of appeals reversed and held that the district court had erred when they dismissed Respondents’ claims because Section 1806(f) of FISA was a means to adjudicate Respondents’ claims. Petitioners argue that because the government has no intention of using or disclosing evidence obtained under FISA and because Respondents have not filed any motion to suppress or similar motion to preclude use or disclosure of any FISA evidence, Section 1806(f) does not apply. Further, Petitioners argue that Section 1806(f) has no application in this case and does not displace state-secrets privilege to protect national security because there is no clear intent from Congress that change to the executive authority regarding the national security implications of compelled disclosure within litigation was contemplated.