Fed. Bureau of Investigation v. Fazaga

• Decision Date: 04 March 2022
• Docket Number: 20-828
• Citation: 142 S.Ct. 1051
• Parties: FEDERAL BUREAU OF INVESTIGATION, et al., Petitioners v. Yassir FAZAGA, et al.
• Court: U.S. Supreme Court

142 S.Ct. 1051

FEDERAL BUREAU OF INVESTIGATION, et al., Petitioners

v.Yassir FAZAGA, et al.

No. 20-828

Supreme Court of the United States.

Argued November 8, 2021

Decided March 4, 2022

Edwin S. Kneedler, Deputy Solicitor General, for Petitioners.

Catherine M.A. Carroll, Washington, DC, for Agent Respondents

Ahilan T. Arulanantham, Los Angeles, CA, for Respondents Fazaga, et al.

Peter Bibring, Mohammad Tajsar ACLU Foundation of Southern California, Ahilan Arulanatham, UCLA School of Law, Los Angeles, CA, Amr Shabaik, Dina Chehata, Cair-Los Angeles, Anaheim, CA, Patrick Toomey, Ashley Gorski, American Civil Liberties Union Foundation, New York, NY, Dan Stormer, Shaleen Shanbhag, Hadsell Stormer Renick & Dai LLP, Pasadena, CA, David D. Cole, American Civil Liberties Union Foundation, Washington, DC, for Respondents.

Elizabeth B. Prelogar, Acting Solicitor General, Counsel of Record, Edwin S. Kneedler, Deputy Solicitor General, Sarah E. Harrington, Deputy Assistant Attorney General, Jonathan Y. Ellis, Assistant to the Solicitor General, Sharon Swingle, Joseph F. Busa, Attorneys, Department of Justice, Washington, DC, for Petitioners.

Katie Moran, Wilmer Cutler Pickering Hale and Dorr LLP, Los Angeles, CA, Catherine M.A. Carroll, Counsel of Record, Howard M. Shapiro, Justin M. Baxenberg, Allison M. Schultz, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, for Respondents.

Brian H. Fletcher, Acting Solicitor General, Counsel of Record, Department of Justice, Washington, DC, for Petitioners.

Alexander H. Cote, Counsel of Record, Winston & Strawn LLP, Angeles, CA, for Respondents.

Justice ALITO delivered the opinion of the Court.

In this case, we consider the relationship between the longstanding "state secrets" privilege and a provision of the Foreign Intelligence Surveillance Act of 1978 (FISA), 92 Stat. 1783, 50 U.S.C. § 1801 et seq. , that provides a procedure under which a trial-level court or other authority may consider the legality of electronic surveillance conducted under FISA and may thereafter order specified forms of relief. See § 1806(f). This case was brought in federal court by three Muslim residents of Southern California who allege that the Federal Bureau of Investigation illegally surveilled them and others under FISA because of their religion. In response, the defendants (hereinafter Government) invoked the state secrets privilege and asked the District Court to dismiss most of respondents' claims because the disclosure of counter-intelligence information that was vital to an evaluation of those claims would threaten national-security interests.

The District Court agreed with the Government's argument and dismissed the claims in question, but the Ninth Circuit reversed, reasoning that § 1806(f) "displaced" the state secrets privilege. We now hold that § 1806(f) has no such effect, and we therefore reverse.

I

A

This Court has repeatedly recognized "a Government privilege against court-ordered disclosure of state and military secrets," General Dynamics Corp. v. United States , 563 U.S. 478, 484, 131 S.Ct. 1900, 179 L.Ed.2d 957 (2011) ; see also United States v. Zubaydah , ––– U.S. ––––, ––––, 142 S.Ct. 959, ––– L.Ed.2d. –––– (2022) ; Tenet v. Doe , 544 U.S. 1, 11, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005) ; United States v. Reynolds , 345 U.S. 1, 6–7, 73 S.Ct. 528, 97 L.Ed. 727 (1953) ; Totten v. United States , 92 U.S. 105, 107, 23 L.Ed. 605 (1876). The present case requires us to determine whether FISA affects the availability or scope of that long-established privilege.

Electronic surveillance for ordinary criminal law enforcement purposes is governed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 – 2522, but foreign intelligence surveillance presents special national-security concerns, and Congress therefore enacted FISA to provide special procedures for use when the Government wishes to conduct such surveillance. See Clapper v. Amnesty Int'l USA , 568 U.S. 398, 402, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). FISA established the Foreign Intelligence Surveillance Court to entertain applications for and, where appropriate, to issue orders authorizing such surveillance. See id., at 402–403, 133 S.Ct. 1138 ; 50 U.S.C. §§ 1803 – 1805.

When information is lawfully gathered pursuant to such an order, § 1806 permits its use in judicial and administrative proceedings and specifies the procedure that must be followed before that is done.

Under § 1806(c), "[w]henever the Government intends to enter into evidence or otherwise use or disclose ... against an aggrieved person"¹ in any court proceeding² any information obtained under FISA, the United States must "notify" both "the aggrieved person and the court." Subsection (e) then allows anyone against whom the Government intends to use such information to move to suppress that evidence on the ground that it was "unlawfully acquired" or that "the surveillance was not made in conformity with an order of authorization or approval." § 1806(e).

The specific provision at issue here, subsection (f) of § 1806, establishes procedures for determining the lawfulness and admissibility of such information.³ That subsection permits a court to make that determination "in camera and ex parte" if the "Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States." § 1806(f).

Three circumstances trigger these procedures: first, where the United States or a state authority gives notice under § 1806(c) or (d) that it intends to "enter into evidence or otherwise use or disclose" FISA information; second, where an aggrieved person files a motion to suppress such information under subsection (e); and third, where "any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter." § 1806(f).

Once § 1806(f) ’s in camera and ex parte procedures are triggered, the court must review 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." Ibid. If the court finds that the evidence was unlawfully obtained, it must "suppress" the evidence or "otherwise grant the motion of the aggrieved person." § 1806(g). But if the court finds that the evidence was lawfully obtained, it must "deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure." Ibid.

B

Respondents Yassir Fazaga, Ali Malik, and Yasser Abdel Rahim are members of Muslim communities in southern California who claim that the Federal Bureau of Investigation illegally surveilled them because of their religion. Respondents allege that the FBI directed a confidential informant to "gather information on Muslims in an indiscriminate manner." App. 97, First Amended Complaint ¶99. This informant purportedly infiltrated a Muslim community and gathered "hundreds of phone numbers and thousands of email addresses of Muslims"; "hundreds of hours of video recordings" made inside mosques, homes, and other private locations; and "thousands of hours of audio recording of conversations" and of "public discussion groups, classes, and lectures." Id., at 194, Decl. of Craig Monteilh ¶71. Respondents allege that the surveillance operation ended when the informant, at the FBI's instruction, began asking members of the community about violent jihad , and some of those individuals reported the informant to the FBI and local police.

In 2011, respondents filed this putative class action against the United States, the FBI, and two FBI officials in their official capacities.⁴ Respondents claimed that the Government's unlawful information-gathering operation violated their rights under the Establishment Clause; the Free Exercise Clause; the Fourth Amendment; the equal protection component of the Fifth Amendment's Due Process Clause; the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq . ; the Federal Tort Claims Act, 28 U.S.C. § 1346 ; FISA, 50 U.S.C. § 1810 ; the Privacy Act, 5 U.S.C. § 552a ; and California law.

The Government moved to dismiss all those claims and argued, among other things, that the state secrets privilege required dismissal of most of them. To that end, Attorney General Holder filed a declaration asserting a "formal claim of the state secrets privilege in order to protect the national security interests of the United States." App. 26, Decl. of Eric H. Holder ¶1. This claim applied to the following categories of information: information that could "confirm or deny whether a particular individual was or was not the subject of an FBI counterterrorism investigation," information that could reveal the "initial reasons" for or the "status and results" of an "FBI counterterrorism investigation," and information that could reveal the "sources and methods" used in such an investigation. Id., at 28, ¶4. An Assistant Director of the FBI filed a public declaration explaining why disclosure "reasonably could be expected to cause significant harm to national security," id., at 60, Decl. of Mark F. Giuliano ¶32, along with a more detailed classified declaration.

After reviewing both "the public and classified filings," the District Court held that the state secrets privilege required dismissal of all respondents' claims against the Government, except for the claim under FISA, 50 U.S.C. § 1810, which it dismissed on sovereign-immunity grounds. 884 F.Supp.2d 1022, 1049 (CD Cal. 2012) ; 885 F.Supp.2d 978, 982–984 (CD Cal. 2012). The District Court concluded that litigation of the claims it dismissed ...