Whether the state-secrets privilege can be displaced by the Foreign Intelligence Surveillance Act's (FISA) procedures for ex parte review of electronic surveillance when national security information is at issue

No question identified. : 1. This case involves the state-secrets privilege, which “prevent[s] disclosure of information [in litigation] when that disclosure would harm national security interests.” United States v. Zubaydah, 595 U.S. 195, 204 (2022). Plaintiffs are three members of Muslim communities in Southern California allegedly investigated by the FBI in an investigation known as “Operation Flex.” 884 F. Supp. 2d 1022, 1028. Plaintiffs alleged that an FBI informant, Craig Monteilh, joined local Muslim communities to gather information on their members and that Monteilh’s activities and the FBI’s broader investigation constituted a “dragnet” targeting Muslims “based on their religion.” Ibid. Plaintiffs brought claims against the Federal Bureau of Investigation, the FBI Director, and the Director of the FBI’s Los Angeles Field Office in their official capacities. Plaintiffs also asserted claims under the Fourth Amendment and the Foreign ntelligence Surveillance Act of 1978 (FISA), Pub. L. No. 95-511, 92 Stat. 1783 (50 U.S.C. 1801 et seq.), challenging the lawfulness of the FBI’s surveillance. 884 F. Supp. 2d at 1029. They sought an injunction ordering “the destruction or return of any information gathered through Operation Flex.” Id. at 1034. 2. a. In 2012, then-Attorney General Eric Holder invoked the state-secrets privilege over three categories of information: (1) “*[i]nformation that could tend to confirm or deny whether a particular individual was or was not the subject of an FBI counterterrorism investigation, including in Operation Flex’”; (2) “*[i]nformation that could tend to reveal the initial reasons (i.e., predicate) for an FBI counterterrorism investigation of a particular person’” and any information “‘obtained’” from such an investigation or the “‘status and results’” of the investigation; and (3) “*‘{i]nformation that could tend to reveal whether particular sources and methods were used in a counterterrorism investigation of a particular subject.’” 884 F. Supp. 2d at 1041 (citations omitted). In addition to public declarations in support of this invocation from then-Attorney General Holder and an FBI official, the government submitted classified declarations ex parte and in camera explaining in detail why disclosure of the specified information could reasonably be expected to harm the national security. See id. at 1041-1042. The government, as relevant here, later moved to dismiss plaintiffs’ claims on the ground that litigating them would require disclosure of privileged statesecrets information -specifically, whom the government was investigating and why. See 884 F. Supp. 2d at 1039. b. The United States District Court for the Central District of California agreed that the information was privileged and that its disclosure “would significantly compromise national security.” 884 F. Supp. 2d at 1042. The court dismissed virtually all of plaintiffs’ claims, including the claims, because further litigation “would certainly require or, at the very least, greatly risk disclosure” of privileged information. bid. The court explained that the government would necessarily rely on privileged information to “show[] that Defendants’ purported ‘dragnet’ investigations were not indiscriminate schemes to target Muslims, but were properly predicated and focused.” Id. at 1046. Given the presence of “fact-intensive questions that necessitate a detailed inquiry into the nature, scope, and reasons for the investigations under Operation Flex,” id. at 1047, the district court deemed dismissal appropriate. The court further noted that “Operation Flex[] involves both privileged and nonprivileged information, which cannot be separated as a practical matter,” and that “[t]Jhe effort to separate privileged from nonprivileged information -even with the protective procedures available to the [c]ourt -presents an unjustifiable risk of disclosing state secrets.” Id. at 1048. c. After plaintiffs obtained partial final judgment on th