Federal Bureau of Investigation v. Fazaga
Issues
Does Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 supplant the state-secrets privilege to allow a district court to investigate alleged national security secrets and determine the merits of a lawsuit challenging covert government surveillance of individuals freely practicing their religion?
This case asks the Supreme Court to balance the state-secrets privilege and the Foreign Intelligence Surveillance Act of 1978 (“FISA”). The state-secrets privilege permits the government to withhold certain information from evidence in a proceeding if that information’s disclosure would be detrimental to national security. FISA establishes procedures for judicial oversight of the government’s electronic surveillance of individuals in the United States. After the Federal Bureau of Investigation electronically surveilled Yassir Fazaga (“Fazaga”) and the Islamic Center as a part of counterterrorism efforts, Fazaga and other members of the Center filed suit based unconstitutional searches and the freedom of religion, seeking to use FISA to access the surveillance. The Federal Bureau of Investigation argues that the state-secrets privilege supersedes FISA and should be honored to avoid disclosure of privileged information that would harm national security. Yassir Fazaga counters that FISA displaces the state-secrets privilege and requires in camera and ex parte review of his religious freedom claims. The outcome of this case has strong implications for national security interests and civil liberties.
Questions as Framed for the Court by the Parties
Whether Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 displaces the states-secret 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.
The Federal Bureau of Investigation (“FBI”), beginning at least in 2006, set up a counterterrorism operation known as Operation Flex, which used detection and prevention techniques to counter alleged terrorism and sought to “gather information on Muslims.” Fazaga v. Federal Bureau of Investigation at 19. As part of this operation, the FBI hired Craig Monteilh (“Monteilh”) as an informant in Los Angeles.
Additional Resources
- Debra Cassens Weiss, SCOTUS Will Hear Case Involving FBI Surveillance of Muslim Community and State Secrets Privilege, ABA Journal (June 7, 2021).
- Andrew Hamm, Two Cases on the State-Secrets Privilege, SCOTUSblog (Jan. 22, 2021).
- Rohini Kurup, Supreme Court to Hear State Secrets Case on FBI Surveillance, Lawfare (Sept. 15, 2021).