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1 1 (January 12, 2022)

handle is hein.crs/govefcq0001 and id is 1 raw text is: A Congressional ______ **Research Service FBI v. Fazaga: Supreme Court Examines Interplay of State Secrets Privilege and the Foreign Intelligence Surveillance Act January 12, 2022 On November 8, 2021, the Supreme Court heard oral arguments in Federal Bureau oflnvestigation (FBI) v. Fazaga, a case that explores the circumstances in which a federal court may examine classified information in a civil lawsuit in order to review the legality of certain government surveillance activities. The plaintiffs in Fazaga are three Muslim individuals who allege that the FBI directed a confidential informant to conduct surveillance at the plaintiffs' homes, businesses, and places of worship based purely on their religious identity. Such surveillance was conducted under the Foreign Intelligence Surveillance Act of 1978 (FISA), which authorizes, among other things, electronic surveillance and physical searches if there is probable cause to believe that the targets are agents of a foreign power. The plaintiffs sued the government alleging various constitutional and statutory claims. The plaintiffs also sued several FBI officials in their individual capacities pursuant to Section 110 of FISA (50 U.S.C. @ 1810) which provides a civil remedy for an aggrieved person . .. who has been subjected to an electronic surveillance in violation of federal law. The State Secrets Privilege In response to the allegations asserted by the plaintiffs, the government argued that the surveillance was based on other factors besides the plaintiffs' religion, but that they could not disclose the applications and materials supporting the FISA orders because of the sensitive national security information contained therein. In formal terms, the government invoked the state secrets privilege which is a common law doctrine under which information may be protected from compelled disclosure if a court finds that there is a reasonable danger that such disclosure will expose military matters which, in the interest of national security, should not be divulged. In the seminal 1953 case of Reynolds v. United States, the Supreme Court upheld the use of the state secrets privilege to protect classified information from disclosure. In Reynolds, the Court attempted to balance the competing interests of a plaintiff's need for evidence and the government's national security interests. The Court held that, while the privilege requires some deference to the executive branch, an Congressional Research Service https://crsreports.congress.gov LSB10683 CRS Legal Sidebar Prepared for Members and Committees of Congress

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