FBI v. Fazaga

P R E L I M I N A R Y P R I N T
Volume 595 U. S. Part 2
Pages 344–359
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
March 4, 2022
REBECCA A. WOMELDORF
reporter of decisions
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344 OCTOBER
TERM, 2021
Syllabus
FEDERAL BUREAU OF INVESTIGATION et al. v.
F
AZAGA et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 20–828. Argued November 8, 2021—Decided March 4, 2022
Respondents Yassir Fazaga, Ali Malik, and Yasser Abdel Rahim, members
of Muslim communities in California, fled a putative class action against
the Federal Bureau of Investigation and certain Government offcials,
claiming that the Government subjected them and other Muslims to
illegal surveillance under the Foreign Intelligence Surveillance Act of
1978 (FISA). FISA provides special procedures for use when the Gov-
ernment wishes to conduct foreign intelligence surveillance. Relevant
here, FISA provides a procedure under which a trial-level court or other
authority may consider the legality of electronic surveillance conducted
under FISA and order specifed forms of relief. See 50 U. S. C.
§ 1806(f ). The Government moved to dismiss most of respondents'
claims under the “state secrets” privilege. See, e. g., General Dynam-
ics Corp. v. United States, 563 U. S. 478. After reviewing both public
and classifed flings, the District Court held that the state secrets privi-
lege required dismissal of all respondents' claims against the Govern-
ment, except for one claim under § 1810, which it dismissed on other
grounds. The District Court determined dismissal appropriate because
litigation of the dismissed claims “would require or unjustifably risk
disclosure of secret and classifed information.” 884 F. Supp. 2d 1022,
1028–1029. The Ninth Circuit reversed in relevant part, holding that
“Congress intended FISA to displace the state secrets privilege and its
dismissal remedy with respect to electronic surveillance.” 965 F. 3d
1015, 1052.
Held: Section 1806(f ) does not displace the state secrets privilege.
Pp. 353–359.
(a) The case requires the Court to determine whether FISA affects
the availability or scope of the long-established “Government privilege
against court-ordered disclosure of state and military secrets.” Gen-
eral Dynamics Corp., 563 U. S., at 484. Congress enacted FISA to pro-
vide special procedures for use when the Government wishes to conduct
foreign intelligence surveillance in light of the special national-security
concerns such surveillance may present. See Clapper v. Amnesty Int'l
USA, 568 U. S. 398, 402. When information is lawfully gathered pursu-
ant to FISA, § 1806 permits its use in judicial and administrative pro-

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as: 595 U. S. 344 (2022)
345
Syllabus
ceedings but specifes procedures that must be followed before that is
done
. Subsection (f ) of § 1806 permits a court to determine whether
information was lawfully gathered “in camera and ex parte” if the “At-
torney General fles an affdavit under oath that disclosure or an adver-
sary hearing would harm the national security of the United States.”
§ 1806(f ).
Central to the parties' argumentation in this Court, and to the Ninth
Circuit's decision below, is the correct interpretation of § 1806(f ). The
Ninth Circuit's conclusion that Congress intended FISA to displace the
state secrets privilege rested in part on its conclusion that § 1806(f )'s
procedures applied to this case. The Government contends that the
Ninth Circuit erred because § 1806(f ) is a narrow provision that applies
only when an aggrieved person challenges the admissibility of surveil-
lance evidence. Respondents interpret § 1806(f ) more broadly, arguing
that it also can be triggered when a civil litigant seeks to obtain secret
surveillance information, as respondents did here, and when the Govern-
ment moves to dismiss a case pursuant to the state secrets privilege.
The Court does not resolve the parties' dispute about the meaning of
§ 1806(f ) because the Court reverses the Ninth Circuit on an alternative
ground. Pp. 353–355.
(b) Section 1806(f ) does not displace the state secrets privilege, for
two reasons. Pp. 355–359.
(1) The text of FISA weighs heavily against the argument that
Congress intended FISA to displace the state secrets privilege. The
absence of any reference to the state secrets privilege in FISA is strong
evidence that the availability of the privilege was not altered when Con-
gress passed the Act. Regardless of whether the state secrets privi-
lege is rooted only in the common law (as respondents argue) or also in
the Constitution (as the Government argues), the privilege should not
be held to have been abrogated or limited unless Congress has at least
used clear statutory language. See Norfolk Redevelopment and Hous-
ing Authority v. Chesapeake & Potomac Telephone Co. of Va., 464 U. S.
30, 35; Jennings v. Rodriguez, 583 U. S. –––, –––. P. 355.
(2) Even on respondents' interpretation of § 1806(f ), nothing about
the operation of § 1806(f ) is incompatible with the state secrets privilege.
Although the Ninth Circuit and respondents view § 1806(f ) and the priv-
ilege as “animated by the same concerns” and operating in fundamen-
tally similar ways, that is simply wrong. As an initial matter, it seems
clear that the state secrets privilege will not be invoked in the great
majority of cases in which § 1806(f ) is triggered. And in the few cases
in which an aggrieved party, rather than the Government, triggers the
application of § 1806(f ), no clash exists between the statute and the privi-
lege because they (1) require courts to conduct different inquiries, (2)
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346 FBI
v. FAZAGA
Syllabus
authorize courts to award different forms of relief, and (3) direct the
par
ties and the courts to follow different procedures.
First, the central question for courts to determine under § 1806(f ) is
“whether the surveillance of the aggrieved person was lawfully author-
ized and conducted.” By contrast, the state secrets privilege asks
whether the disclosure of evidence would harm national security inter-
ests, regardless of whether the evidence was lawfully obtained.
Second, the relief available under the statute and under the privilege
differs. Under § 1806, a court has no authority to award any relief to
an aggrieved person if it fnds the evidence was lawfully obtained,
whereas a court considering an assertion of the state secrets privilege
may order the disclosure of lawfully obtained evidence if it fnds that
disclosure would not affect national security. And under respondents'
interpretation of § 1806(f ), a court must award relief to an aggrieved per-
son against whom evidence was unlawfully obtained, but under the state
secrets privilege, lawfulness is not determinative. Moreover, the poten-
tial availability of dismissal on the pleadings pursuant to the state se-
crets privilege shows that the privilege and § 1806(f ) operate differently.
Third, inquiries under § 1806(f ) and the state secrets privilege are
procedurally different. Section 1806(f ) allows “review in camera and
ex parte” of materials “necessary to determine” whether the surveil-
lance was lawful. Under the state secrets privilege, however, examina-
tion of the evidence at issue, “even by the judge alone, in chambers,”
should not be required if the Government shows “a reasonable danger
that compulsion of the evidence” will expose information that “should
not be divulged” in “the interest of national security.” United States
v. Reynolds, 345 U. S. 1, 10. Pp. 355–359.
(c) This decision answers the narrow question whether § 1806(f ) dis-
places the state secrets privilege. The Court does not decide which
party's interpretation of § 1806(f ) is correct, whether the Government's
evidence is privileged, or whether the District Court was correct to
dismiss respondents' claims on the pleadings. P. 359.
965 F. 3d 1015, reversed and remanded.
Alito, J., delivered the opinion for a unanimous Court.
Deputy Solicitor General Kneedler argued the cause for
petitioners. With him on the briefs were Acting Solicitor
General Prelogar, Acting Solicitor General Fletcher, Dep-
uty Assistant Attorney General Harrington, Jonathan Y.
Ellis, Sharon Swingle, and Joseph F. Busa.

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Opinion of the Court
Catherine M. A. Carroll argued the cause for agent re-
s
pondents. With her on the br iefs was Ho w ard M.
Shapiro.
Ahilan T. Arulanantham argued the cause for respond-
ents Fazaga et al. With him on the briefs were Dan
Stormer, David D. Cole, Peter Bibring, Mohammad Tajsar,
Patrick Toomey, and Ashley Gorski. Alexander H. Cote
fled briefs for respondents Paul Allen et al.*
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 con-
sider the legality of electronic surveillance conducted under
FISA and may thereafter order specifed forms of relief.
See § 1806(f ). This case was brought in federal court by
three Muslim residents of Southern California who allege
*Briefs of amici curiae urging affrmance were fled for the Asian
Americans Advancing Justice-Asian Law Caucus et al. by Winifred Kao;
for the Brennan Center for Justice et al. by David M. Gossett, Chris Swift,
and Elizabeth Goitein; for the Constitutional Accountability Center by
Elizabeth B. Wydra, Brianne J. Gorod, and Brian R. Frazelle; for Consti-
tutional Law Professors by Akiva Shapiro; for the Electronic Frontier
Foundation by Richard R. Wiebe, Cindy A. Cohn, David Greene, Kurt
Opsahl, Andrew Crocker, and Thomas E. Moore III; for the Free Speech
Defense and Education Fund et al. by William J. Olson, Jeremiah L. Mor-
gan, Robert J. Olson, Patrick M. McSweeney, and Robert J. Cynkar; for
the Project for Privacy & Surveillance Accountability by Gene C. Schaerr,
Erik S. Jaffe, Hannah C. Smith, and Kathryn E. Tarbert; for James
Dempsey et al. by Jennifer R. Cowan, Matthew Specht, and Mr. Dempsey
and Sharon Bradford Franklin, both pro se; for Barry Siegel by Michael
H. Steinberg and Alicia M. Roll; and for 50 Religious Organizations by
Steven A. Zalesin, Adeel A. Mangi, and Michael D. Schwartz.
A brief of amicus curiae was fled for Laura K. Donohue by Shay Dvor-
etzky and Parker Rider-Longmaid.
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348 FBI
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Opinion of the Court
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 evalua-
tion of those claims would threaten national-security
interests.
The District Court agreed with the Government's argu-
ment 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 priv-
ilege against court-ordered disclosure of state and military
secrets,” General Dynamics Corp. v. United States, 563 U. S.
478, 484 (2011); see also United States v. Zubaydah, 595 U. S.
195, 204 (2022); Tenet v. Doe, 544 U. S. 1, 11 (2005); United
States v. Reynolds, 345 U. S. 1, 6–7 (1953); Totten v. United
States, 92 U. S. 105, 107 (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 enforce-
ment 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 (2013).
FISA established the Foreign Intelligence Surveillance
Court to entertain applications for and, where appropriate,
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349
Opinion of the Court
to issue orders authorizing such surveillance. See id., at
402
–403; 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 specifes the procedure that must be fol-
lowed 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 proceeding
2
any informa-
tion 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 specifc provision at issue here, subsection (f ) of § 1806,
establishes procedures for determining the lawfulness and
admissibility of such information.
3
That subsection permits
1
An “aggrieved person” is “a person who is the target of an electronic
surveillance or any other person whose communications or activities were
subject to electronic surveillance.” 50 U. S. C. § 1801(k).
2
Section 1806 applies to proceedings in both federal and state court.
See §§ 1806(c), (d). It also applies to proceeding before any “department,
offcer, agency, regulatory body, or other authority.” Ibid.
3
The provision in its entirety reads: “Whenever a court or other author-
ity is notifed pursuant to subsection (c) or (d), or whenever a motion is
made pursuant to subsection (e), or whenever 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, the United States district court or, where
the motion is made before another authority, the United States district
court in the same district as the authority, shall, notwithstanding any
other law, if the Attorney General fles an affdavit under oath that disclo-
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350 FBI
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Opinion of the Court
a court to make that determination “in camera and ex parte”
i
f the “Attorney General fles an affdavit under oath that
disclosure or an adversary hearing would harm the national
security of the United States.” § 1806(f ).
Three circumstances trigger these procedures: frst, where
the United States or a state authority gives notice under
§ 1806(c) or (d) that it intends to “enter into evidence or oth-
erwise use or disclose” FISA information; second, where an
aggrieved person fles a motion to suppress such information
under subsection (e); and third, where “any motion or re-
quest 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 ag-
grieved person was lawfully authorized and conducted.”
Ibid. If the court fnds 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 fnds 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.
sure or an adversary hearing would harm the national security of the
United States, review in camera and ex parte 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. In making this determination, the court may
disclose to the aggrieved person, under appropriate security procedures
and protective orders, portions of the application, order, or other materials
relating to the surveillance only where such disclosure is necessary to
make an accurate determination of the legality of the surveillance.”
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Opinion of the Court
B
Respondents
Yassir Fazaga, Ali Malik, and Yasser Abdel
Rahim are members of Muslim communities in southern Cal-
ifornia who claim that the Federal Bureau of Investigation
illegally surveilled them because of their religion. Respond-
ents allege that the FBI directed a confdential informant to
“gather information on Muslims in an indiscriminate man-
ner.” App. 97, First Amended Complaint ¶99. This in-
formant purportedly infltrated 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 con-
versations” and of “public discussion groups, classes, and lec-
tures.” Id., at 194, Decl. of Craig Monteilh ¶71. Respond-
ents 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 indi-
viduals reported the informant to the FBI and local police.
In 2011, respondents fled this putative class action against
the United States, the FBI, and two FBI offcials in their
offcial capacities.
4
Respondents claimed that the Govern-
ment's unlawful information-gathering operation violated
their rights under the Establishment Clause; the Free Exer-
cise 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 Cali-
fornia law.
The Government moved to dismiss all those claims and
argued, among other things, that the state secrets privilege
4
Respondents also sued fve named FBI agents and 20 unnamed agents
in their individual capacities, but we need not discuss those claims or those
parties (who are also respondents in this Court and who fled briefs sup-
porting the Government) in order to resolve the question presented.
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352 FBI
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Opinion of the Court
required dismissal of most of them. To that end, Attorney
Genera
l Holder fled 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 cate-
gories of information: information that could “confrm or
deny whether a particular individual was or was not the sub-
ject of an FBI counterterrorism investigation,” information
that could reveal the “initial reasons” for or the “status and
results” of an “FBI counterterrorism investigation,” and in-
formation that could reveal the “sources and methods” used
in such an investigation. Id., at 28, ¶4. An Assistant Di-
rector of the FBI fled a public declaration explaining why
disclosure “reasonably could be expected to cause signifcant
harm to national security,” id., at 60, Decl. of Mark F. Giuli-
ano ¶32, along with a more detailed classifed declaration.
After reviewing both “the public and classifed flings,” 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 “would require or unjustifably risk
disclosure of secret and classifed information.” 884 F. Supp.
2d, at 1028–1029.
The Ninth Circuit reversed in relevant part and held that
“Congress intended FISA to displace the state secrets privi-
lege and its dismissal remedy with respect to electronic sur-
veillance.” 965 F. 3d 1015, 1052 (2020). That holding de-
pended on two subsidiary conclusions. First, the Court of
Appeals held that Ҥ 1806(f ) procedures are to be used when
an aggrieved person affrmatively challenges, in any civil
case, the legality of electronic surveillance or its use in litiga-
tion, whether the challenge is under FISA itself, the Consti-
tution, or any other law.” Ibid. Second, the Court of Ap-
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Opinion of the Court
pea ls held that, where § 1806(f )'s procedures apply, it
“speak[
s] quite directly to the question otherwise answered
by the dismissal remedy sometimes required by the common
law state secrets privilege.” Id., at 1045. That is so, the
Court of Appeals reasoned, because § 1806(f )'s procedures
are “animated by the same concerns” as the state secrets
privilege and “triggered” by a “nearly identical” process.
Id., at 1046. It thus reversed the District Court's dismissal
of respondents' claims on state secrets grounds.
The Ninth Circuit denied rehearing en banc over the dis-
sent of Judge Bumatay and nine other judges. We granted
certiorari to decide whether § 1806(f ) displaces the state se-
crets privilege. 594 U. S. ––– (2021).
II
A
Much of the parties' argumentation in this Court concerns
the correct interpretation of § 1806(f ). The Government
contends that the Ninth Circuit erred because § 1806(f ) is
“ `relevant only when a litigant challenges the admissibility of
the government's surveillance evidence.' ” Reply Brief for
Petitioners 2 (quoting Wikimedia Foundation v. NSA, 14
F. 4th 276, 294 (CA4 2021)). But respondents interpret that
provision more broadly.
Respondents do not dispute that § 1806(f ) applies when the
Government seeks to introduce evidence and a private party
seeks to prevent such use, but they argue that § 1806(f ) is
also sometimes triggered when “a civil litigant seeks to ob-
tain such secret information.” Brief for Respondents 34.
And they say that § 1806(f ) applies in this case for two rea-
sons. First, they note that § 1806(f ) is triggered not only
when the Government gives notice that it intends to “enter
into evidence” information obtained by means of covered sur-
veillance but also when it notifes the court that it “in-
tends to . . . otherwise use” such information. § 1806(c).
Respondents argue that the Government “use[d]” informa-
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354 FBI
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Opinion of the Court
tion gathered under FISA when it invoked the state secrets
pr
ivilege and asked the District Court to dismiss some of
respondents' claims pursuant to that privilege. In respond-
ents' view, the attempt to leverage a claim of privilege into
a dismissal constitutes a “use” of FISA information against
them. See Brief for Respondents 35–38; Tr. of Oral Arg.
71–73. Second, respondents note that § 1806(f ) applies when
an “aggrieved person” makes “any motion or request” to
“discover or obtain” electronic-surveillance evidence, and
they say that their complaint's request for an injunction
ordering the Government to “destroy or return any informa-
tion gathered through the unlawful surveillance program”
triggered that provision. App. 146; see also Brief for Re-
spondents 39 – 40.
5
That prayer for rel ief, they mai n-
tain, constituted a “request” to “discover or obtain” the
information.
The Government disagrees with both of these theories.
It argues that the assertion of the state secrets privilege did
not constitute a “use” of “information obtained or derived
from an electronic surveillance.” On the contrary, the Gov-
ernment contends, the assertion of the privilege represented
an attempt to prevent the use of that information. Reply
Brief for Petitioners 2–3. In addition, the Government
maintains that respondents never fled a “ `motion or request
. . . to discover [or] obtain' ” information derived from or ma-
terials relating to FISA surveillance because their com-
plaint's prayer for relief did not constitute a “ `motion or re-
quest.' ” Id., at 5.
5
The Circuits disagree about the correct interpretation of § 1806(f ).
Compare Wikimedia Foundation v. NSA, 14 F. 4th 276, 294 (CA4 2021)
(“[W]e conclude that § 1806(f ) is relevant only when a litigant challenges
the admissibility of the government's surveillance evidence”), with 965
F. 3d 1015, 1052 (CA9 2020) (Ҥ 1806(f ) procedures are to be used when any
aggrieved person affrmatively challenges, in any civil case, the legality of
electronic surveillance or its use in litigation, whether the challenge is
under FISA itself, the Constitution, or any other law”).
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as: 595 U. S. 344 (2022)
355
Opinion of the Court
We need not resolve this dispute about the meaning of
§
1806(f ) because we reverse the Ninth Circuit on an alterna-
tive ground—namely, that even as interpreted by respond-
ents, § 1806(f ) does not displace the state secrets privilege.
B
We reach this conclusion for two reasons.
1
First, the text of FISA weighs heavily against respond-
ents' displacement argument. FISA makes no reference to
the state secrets privilege. It neither mentions the privi-
lege by name nor uses any identifable synonym, and its only
reference to the subject of privilege refects a desire to avoid
the alteration of privilege law. See § 1806(a).
6
The absence of any statutory reference to the state secrets
privilege is strong evidence that the availability of the privi-
lege was not altered in any way. Regardless of whether the
state secrets privilege is rooted only in the common law (as
respondents argue) or also in the Constitution (as the Gov-
ernment argues), the privilege should not be held to have
been abrogated or limited unless Congress has at least used
clear statutory language. See Norfolk Redevelopment and
Housing Authority v. Chesapeake & Potomac Telephone Co.
of Va., 464 U. S. 30, 35 (1983) (presumption against repeal of
the common law); Jennings v. Rodriguez, 583 U. S. –––, –––
(2018) (canon of constitutional avoidance).
2
Even if respondents' interpretation of § 1806(f ) is accepted,
nothing about the operation of that provision is at all incom-
patible with the state secrets privilege. The Ninth Circuit
6
That provision states: “No otherwise privileged communication ob-
tained in accordance with, or in violation of, the provisions of this subchap-
ter shall lose its privileged character.”

356 FBI
v. FAZAGA
Opinion of the Court
thought that § 1806(f ) and the privilege are “animated by the
same
concerns,” 965 F. 3d, at 1046, and respondents argue
that they operate in “fundamentally similar” ways, Brief for
Respondents 54, but that is simply wrong.
As an initial matter, it seems clear that the state secrets
privilege will not be invoked in the great majority of cases
in which § 1806(f ) is triggered. Section 1806(f ) is most likely
to come into play when the Government seeks to use FISA
evidence in a judicial or administrative proceeding, and the
Government will obviously not invoke the state secrets priv-
ilege to block disclosure of information that it wishes to use.
Section 1806(f ) is much more likely to be invoked in cases of
this sort than in cases in which an aggrieved person takes
the lead and seeks to obtain or disclose FISA information
for a simple reason: individuals affected by FISA surveil-
lance are very often unaware of the surveillance unless it is
revealed by the Government. See 2 D. Kris & J. Wilson,
National Security Investigations & Prosecutions § 30:4 (3d
ed. 2019).
With these cases out of the way, what is left are cases
in which an aggrieved party, rather than the Government,
triggers the application of § 1806(f ), but even under respond-
ents' interpretation of that provision, there is no clash be-
tween § 1806(f ) and the state secrets privilege. The statute
and the privilege (1) require courts to conduct different in-
quiries, (2) authorize courts to award different forms of re-
lief, and (3) direct the parties and the courts to follow differ-
ent procedures. First and most importantly, the inquiries
required by § 1806(f ) and our state secrets jurisprudence are
fundamentally different. Under § 1806(f ), the central ques-
tion is the lawfulness of surveillance. Courts are instructed
to determine “whether the surveillance of the aggrieved
person was lawfully authorized and conducted.” § 1806(f )
(emphasis added).
By contrast, when the state secrets privilege is asserted,
the central question is not whether the evidence in question
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357
Opinion of the Court
was lawfully obtained but whether its disclosure would harm
nati
onal-security interests. As the Court explained in
Reynolds, the privilege applies where “there is a reasonable
danger that compulsion of the evidence will expose military
matters which, in the interest of national security, should not
be divulged.” 345 U. S., at 10; see also, e. g., Zubaydah, 595
U. S., at 204 (“The state secrets privilege permits the Gov-
ernment to prevent disclosure of information when that dis-
closure would harm national security interests”); General
Dynamics, 563 U. S., at 484 (noting that the privilege exists
to serve the “sometimes-compelling necessity of governmen-
tal secrecy” over “military, intelligence, and diplomatic” in-
formation). We have never suggested that an assertion of
the state secrets privilege can be defeated by showing that
the evidence was unlawfully obtained.
Second, in accordance with the fundamentally different in-
quiries called for under § 1806(f ) and the state secrets privi-
lege, the available relief also differs. Under § 1806, a court
has no authority to award any relief to an aggrieved person
if it fnds that the evidence was lawfully obtained, whereas
a court considering an assertion of the state secrets privilege
may order the disclosure of lawfully obtained evidence if it
fnds that disclosure would not affect national security (as-
suming that the information is otherwise subject to disclo-
sure). And under § 1806(f ), as interpreted by respondents,
a court must award relief to an aggrieved person if it fnds
that the evidence was unlawfully obtained, but under the
state secrets privilege, lawfulness is not determinative.
In addition, the state secrets privilege, unlike § 1806,
sometimes authorizes district courts to dismiss claims on the
pleadings. We need not delineate the circumstances in
which dismissal is appropriate (or determine whether dis-
missal was proper in this case), but even respondents con-
cede that dismissal is available in a “spy-contracting case”
when a case's “very subject matter is secret.” Brief for Re-
spondents 25; see also Tenet, 544 U. S., at 11; Totten, 92 U. S.,
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358 FBI
v. FAZAGA
Opinion of the Court
at 107; General Dynamics, 563 U. S., at 492. The availabil-
ity
of dismissal pursuant to the state secrets privilege in
at least some circumstances shows that the privilege and
§ 1806(f ) operate differently.
Third, the inquiries under § 1806(f ) and the state secrets
privilege are procedurally different. Section 1806(f ) allows
the Attorney General to obtain in camera and ex parte re-
view of the relevant surveillance evidence if he “fles an aff-
davit under oath that disclosure or an adversary hearing
would harm the national security of the United States.”
§ 1806(f ). By contrast, the state secrets privilege may be
invoked not just by the Attorney General but by “the head
of the department which has control over the matter, after
actual personal consideration by that offcer.” Reynolds,
345 U. S., at 8. In Reynolds, for example, the Judge Advo-
cate General for the United States Air Force asserted the
privilege. See id., at 4; see also Zubaydah, 595 U. S., at 203
(asserted by the Director of the Central Intelligence
Agency); General Dynamics, 563 U. S., at 482 (asserted by
the Acting Secretary of the Air Force).
The procedures used to evaluate assertions of the state
secrets privilege may also, in some circumstances, be more
protective of information than the procedures prescribed by
§ 1806(f ). Subsection (f ) allows “review in camera and
ex parte” of materials that are “necessary to determine”
whether the surveillance was lawful. Nothing in that sub-
section expressly provides that the Government may shield
highly classifed information from review by the judge if the
information is “necessary” to the determination of the legal-
ity of surveillance. Reynolds, on the other hand, expressly
states that examination of the evidence at issue, “even by
the judge alone, in chambers,” should not be required if the
Government shows “a reasonable danger that compulsion of
the evidence” will expose information that “should not be
divulged” in “the interest of national security.” 345 U. S., at
10. Thus, the state secrets privilege, unlike § 1806(f ), may
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Cite
as: 595 U. S. 344 (2022)
359
Opinion of the Court
sometimes preclude even in camera, ex parte review of the
rele
vant evidence.
For those reasons, we conclude that Congress did not elim-
inate, curtail, or modify the state secrets privilege when it
enacted § 1806(f ).
III
We reiterate that today's decision addresses only the nar-
row question whether § 1806(f ) displaces the state secrets
privilege. Because we conclude that § 1806(f ) does not have
that effect under either party's interpretation of the statute,
we do not decide which interpretation is correct. Nor do
we decide whether the Government's evidence is privileged
or whether the District Court was correct to dismiss re-
spondents' claims on the pleadings. According to respond-
ents, the state secrets privilege authorizes dismissal only
where the case concerns a Government contract or where
the very subject of the action is secret. See Brief for Re-
spondents 23–34. The Government, by contrast, relies on
lower court cases permitting dismissal in other circum-
stances. See Reply Brief for Petitioners 19, n. 2 (citing
cases). The Ninth Circuit did not decide those questions,
and we do not resolve them here.
***
The judgment of the United States Court of Appeals for
the Ninth Circuit is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None