Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

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, mem- bers of Muslim communities in California, filed a putative class action against the Federal Bureau of Investigation and certain Government officials, claiming that the Government subjected them and other Mus- lims to illegal surveillance under the Foreign Intelligence Surveillance Act of 1978 (FISA). FISA provides special procedures for use when the Government wishes to conduct foreign intelligence surveillance. Rele- vant 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 specified forms of relief. See 50 U. S. C. §1806(f). The Government moved to dismiss most of respond- ents’ claims under the “state secrets” privilege. See, e.g., General Dy- namics Corp. v. United States, 563 U. S. 478. After reviewing both public and classified filings, the District Court held that the state se- crets privilege required dismissal of all respondents’ claims against the Government, 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 unjustifi- ably risk disclosure of secret and classified 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 surveil- lance.” 965 F. 3d 1015, 1052. Held: Section 1806(f) does not displace the state secrets privilege. Pp. 7– 13. (a) The case requires the Court to determine whether FISA affects the availability or scope of the long-established “Government privilege 2 FBI v. FAZAGA

Syllabus

against court-ordered disclosure of state and military secrets.” General Dynamics Corp., 563 U. S., at 484. Congress enacted FISA to provide special procedures for use when the Government wishes to conduct for- eign 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 pur- suant to FISA, §1806 permits its use in judicial and administrative proceedings but specifies 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 files an affidavit under oath that disclosure or an ad- versary 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 becau