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 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 pursuant 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 “Attorney General files an affidavit under oath that disclosure or an adversary 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 surveillance 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 Government 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. 7–9.
(b) Section 1806(f) does not displace the state secrets privilege, for
two reasons. Pp. 9–13.
(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
Congress passed the Act. Regardless of whether the state secrets privilege 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
Housing Authority v. Chesapeake & Potomac Telephone Co. of Va., 464
U. S. 30, 35; Jennings v. Rodriguez, 583 U. S. __, __. P. 9.
(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