On November 8, 2021, the Supreme Court will hear oral argument in the class action case, Federal Bureau of Investigation v. Fazaga, Docket No. 20-828.  In Fazaga, members of a Muslim community in Southern California filed suit against the FBI and various FBI agents, alleging that the government’s secret surveillance of them was not lawful because it was based on their religious beliefs and practices.  More specifically, three Muslim men allege that the FBI targeted them because of their religion by using a confidential informant to gather information about Muslims as part of a counterterrorism investigation. FBI agents sent a paid informant to various mosques in California to pose as a convert to Islam. The informant then gathered information (both personal and religious and political) of hundreds of congregants from those mosques.

The suit was initially filed as a class action in the U.S. District Court for the Central District of California. Plaintiffs asserted various violations of the Fourth Amendment and the Foreign Intelligence Act, among others, and sought damages and injunctive relief. The District Court dismissed many of the claims based on the state secrets privilege, which allows the government to prevent the release of sensitive national security information. The Ninth Circuit Court of Appeals reversed, in part, the District Court’s decision and remanded for further proceedings, instructing the District Court to consider the Plaintiffs’ religious discrimination and surveillance claims under procedures in the Foreign Intelligence Surveillance Act, which provides a framework for how courts should handle sensitive evidence in national security matters. See generally Faza v. Federal Bureau of Investigation, 916 F.3d 1202 (2019).

The Supreme Court now will review the Ninth’s Circuit’s decision. Specifically, the issue before the Supreme Court is whether section 1806(f) of the Foreign Intelligence Surveillance Act displaces the state secrets privilege and authorizes district courts to resolve, whether in camera and/or ex-parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering privileged evidence.  Generally, the Foreign Surveillance Act provides a framework that describes and establishes policies related to electronic surveillance and provides a private right of action to challenge unlawful surveillance. Section 1806(f) creates procedures that govern the review of classified electronic surveillance material – including review of classified information by judges under some circumstances.

The government argues that certain claims should be dismissed under the state secrets privilege because the government could not litigate these claims without undue risk to national security, and the Respondents argue that Section 1806(f) of the Foreign Intelligence Act displaces the state secrets privilege and allows the court to conduct review of government evidence to determine whether it was legally collected. This decision may be significant because it could weaken one of the primary tools the government uses to counter challenges to surveillance practices.