parte

Definition

HOLDING AND REASONING: (Alito, J.) (1) Yes. FISA is a federal act that specifies procedures for government involvement in foreign-intelligence surveillance. Section 1806(f) establishes the procedures for determining the lawfulness and admissibility of gathered information. The need for such a determination is triggered if (1) the government gives notice to a court or surveilled person that it intends to enter gathered information into evidence or otherwise disclose it, (2) a surveilled person moves under FISA to suppress gathered information, or (3) a surveilled person moves under another law to discover applications or orders related to electronic surveillance or the information gathered by such surveillance. If the attorney general submits an affidavit stating that the disclosure of gathered information would harm national security, then a court will conduct an ex in camera hearing to make the lawfulness and admissibility determination. The court must review the surveillance application, the order, and other materials necessary to determine whether the surveillance was lawfully authorized and conducted. If so, then the court must generally deny the surveilled person’s motion. If not, then the court must suppress the evidence or grant the surveilled person’s motion to discover the information. (2) No. FISA § 1806(f) does not displace the state-secrets privilege. The state-secrets privilege is a well-established doctrine that provides the government with a privilege against court-ordered disclosure of state and military secrets to protect national-security interests. FISA does not displace the state-secrets privilege for two reasons. First, FISA should not be construed as abrogating or limiting the well-established state-secrets privilege unless there is clear statutory language expressing that intent, which there is not. Second, § 1806(f) and the state-secrets privilege are not incompatible. In most cases, § 1806(f) will be triggered because the government is seeking to use information acquired during surveillance. Because the government is not going to invoke the state-secrets privilege to hinder its own admission of evidence, the state-secrets privilege will rarely be invoked in cases involving § 1806(f). Further, the statute and privilege differ as to their inquiries, available relief, and procedure. Section 1806(f) focuses on the lawfulness of the underlying surveillance, whereas the key inquiry for the state-secrets privilege is whether the disclosure of obtained information will harm national-security interests. Under § 1806, a court cannot award any relief to a surveilled person if the relevant information was lawfully obtained. In contrast, under the state-secrets privilege, a court may order the disclosure of lawfully obtained information if the court determines the disclosure will not threaten national security. Regarding procedure, ex parte in camera review under § 1806(f) must be based on the attorney general’s affidavit that disclosure would harm national security. In contrast, the state-secrets privilege can be asserted by the head of any government department with control over the relevant matter. Because FISA lacks clear statutory language abrogating or limiting the state-secrets privilege and because the statute and privilege are not incompatible, § 1806(f) does not displace the state-secrets privilege. The court of appeals’ judgment to the contrary is reversed.