Facts of the Case
Respondents Sheikh Yassir Fazaga, Ali Uddin Malik, and Yasser AbdelRahim are three Muslim residents of Southern California who regularly attended religious services at the Islamic Center of Irvine. They filed a lawsuit in federal court alleging that the FBI had used a confidential informant to conduct a covert surveillance program for at least fourteen months to gather information at the Islamic Center based solely on their Muslim religious identity. Their claims included violations of the First Amendment’s Establishment Clause and Free Exercise Clauses; the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.; the equal protection component of the Fifth Amendment's Due Process Clause; the Privacy Act, 5 U.S.C. § 552a; the Fourth Amendment; the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1810; and the Federal Tort Claims Act, 28 U.S.C. § 1346.
The U.S. Attorney General asserted the state secrets privilege with respect to evidence in the case and moved to dismiss the discrimination claims based on that privilege. It did not move to dismiss the Fourth Amendment or FISA claims based on privilege, but on other grounds. The district court dismissed all but one of the claims on the basis of the state secrets privilege. The U.S. Court of Appeals for the Ninth Circuit reversed, holding that the district court should have reviewed any state secrets evidence in camera to determine whether the alleged surveillance was unlawful under FISA. The appellate court then denied a petition for a rehearing en banc.
Questions
Does Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 displace the state-secrets privilege and authorize a district court to resolve the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence?
Conclusions
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Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 (FISA) does not displace the state secrets privilege. Justice Samuel Alito authored the opinion for a unanimous Court.
First, the text of FISA lacks any reference to the state secrets privilege, suggesting that its passage did not alter the privilege at all. Regardless of whether the privilege arises from common law or the Constitution, Congress could not have abrogated it without clear statutory language.
Second, § 1806(f), which provides a procedure under which a trial-level court may consider the legality of electronic surveillance conducted under FISA, is not incompatible with the state secrets privilege. They involve different inquiries, award different forms of relief, and different procedures.
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