F.B.I. v. Fazaga: The Secret of the State-Secrets Privilege

When the government successfully invokes the state-secrets privilege, it allows for evidence to be excluded from trial if making that evidence public would threaten national security. It is unclear, however, under what circumstances this privilege can be invoked, what happens when it is successfully invoked, and what occurs after the evidence is excluded. In Federal Bureau of Investigation v. Fazaga, the Supreme Court will have the opportunity to clarify the state-secrets privilege. Additionally, the Court will be asked to determine whether the Foreign Intelligence Surveillance Act of 1978 (FISA) displaces this privilege when the government invokes it regarding evidence obtained through electronic surveillance of U.S. nationals. Petitioners argue that when this privilege is successfully invoked, courts must dismiss the case if continuing the litigation would threaten to disclose the privileged information. Respondents counter that dismissal is only proper where the accusing party cannot successfully make its case without the privileged information. The Court should affirm the Ninth Circuit’s decision and hold that FISA displaces the state-secrets privilege when the privileged evidence was obtained via electronic surveillance of U.S. nationals