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1 1 (December 5, 2023)

handle is hein.crs/govenps0001 and id is 1 raw text is: Con gressionaI ~ Research Service Congressional Displacement of the State Secrets Privilege and Article II December 5, 2023 Supreme Court cases addressing the state secrets privilege are few and far between. Before the 2021 term, when the applicability of the privilege was at issue in two cases, the Court had addressed it in only four cases, the last one decided a decade earlier. One of the cases of the 2021 term-FBI v. Fazaga-was historic in at least two respects of particular interest to Congress. Initially, for the first time, the Court addressed the question whether a statute displaced the state secrets privilege. The statute in question was the Foreign Intelligence Surveillance Act of 1978 (FISA), which currently pending Senate and House bills would amend to provide stronger restrictions on executive surveillance authority, including by expressly abrogating the state secrets privilege in civil suits alleging violations of law related to government surveillance. Second, this case appears to be the first in which most of the Justices on the current Court (all except for Justice Ketanji Brown Jackson, who replaced Justice Stephen Breyer in 2022) have construed a federal statute in a case involving executive claims of authority based on independent Article II authority related to national security and foreign policy. A previous Legal Sidebar summarized the background of and the Court's decision in Fazaga, with a particular focus on the statutory interpretation questions that the Court left unresolved. This Legal Sidebar focuses on the Court's analysis of the statutory interpretation question that the Court did resolve-namely, whether Section 106(f) of FISA displaces the state secrets privilege-and the Court's answer that it does not. More specifically, this Sidebar (1) explains the Court's doctrine on statutory displacement of federal common law; (2) examines the Court's displacement analysis in Fazaga and how it differs from the Court's traditional approach; and (3) discusses the potential implications for congressional and executive power in the context of disclosure of national security information in litigation, and potentially in the context of national security and foreign policy more broadly. Statutory Displacement of Federal Common Law The state secrets privilege is a federal common law doctrine that the Supreme Court began developing early in U.S. history. The doctrine allows the executive to prevent disclosure of information in litigation in certain circumstances when it assesses doing so would compromise national security. Congressional Research Service https://crsreports.congress.gov LSB11086 CRS Legal Sidebar Prepared for Members and Committees of Congress

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