FBI v. Fazaga

Summary

Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978—providing a procedure under which a trial-level court or other authority may consider the legality of electronic surveillance conducted under FISA and order specified forms of relief—does not displace the state secrets privilege.

Text

PRELIMINARY PRINT 
Volume 595 U. S. Part 2 
Pages 344–359 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
March 4, 2022 
REBECCA A. WOMELDORF 
reporter of decisions 
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NOTICE: This preliminary print is subject to formal revision before 
the bound volume is published. Users are requested to notify the Reporter 
of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
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344 OCTOBER TERM, 2021 
Syllabus 
FEDERAL BUREAU OF INVESTIGATION et al. v. 
FAZAGA 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-

Cite 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 
parties 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.

Cite as: 595 U. S. 344 (2022) 347 
Opinion of the Court 
Catherine M. A. Carroll argued the cause for agent re-
spondents. With her on the briefs was Howard 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 v. FAZAGA 
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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Cite as: 595 U. S. 344 (2022) 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 v. FAZAGA 
Opinion of the Court 
a court to make that determination “in camera and ex parte” 
if 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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Cite as: 595 U. S. 344 (2022) 351 
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 v. FAZAGA 
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required dismissal of most of them. To that end, Attorney 
General 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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Cite as: 595 U. S. 344 (2022) 353 
Opinion of the Court 
peals 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 v. FAZAGA 
Opinion of the Court 
tion gathered under FISA when it invoked the state secrets 
privilege 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 relief, they main -
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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Cite 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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Cite as: 595 U. S. 344 (2022) 357 
Opinion of the Court 
was lawfully obtained but whether its disclosure would harm 
national-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 
relevant 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. 
Page Proof Pending Publication

Page Proof Pending Publication
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

Retrieval chunks

• #1

  PRELIMINARY PRINT Volume 595 U. S. Part 2 Pages 344–359 OFFICIAL REPORTS OF THE SUPREME COURT March 4, 2022 REBECCA A. WOMELDORF reporter of decisions Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to noti…

• #2

  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 surveillanc…

• #3

  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.…

• #4

  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 …

• #5

  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. …

• #6

  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 con…

• #7

  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 ma…

• #8

  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 surveil…

• #9

  parties (who are also respondents in this Court and who fled briefs sup- porting the Government) in order to resolve the question presented. Page Proof Pending Publication 352 FBI v. FAZAGA Opinion of the Court required dismissal of most of them. To that end, Attorney General Holder fled a declaration asserting …

• #10

  peals 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 s…

• #11

  “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 Th…

• #12

  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 a…

• #13

  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 requi…

• #14

  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…

• #15

  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 Page Proof Pending Publication Cite as: 595 U. S. 344 (2022) 359 Opinion …