Supreme Court Splinters Over State Secrets Privilege

Today, the Supreme Court published its opinion. United States v. Zubaydah, where the Court ruled the U.S. Court of Appeals was incorrectly deciding that the State Secrets privilege didn’t apply information that could confirm or denial the existence of a CIA Detention Site in Poland within the context of a Discovery dispute.

Justice Stephen Breyer provided the Court with the opinion. However, the Court is in chaos. The Court split in two.

BREYER, J., delivered the opinion of the Court, except as to Parts II–B–2 and III. ROBERTS, C. J., joined that opinion in full, KAVANAUGH and BARRETT, JJ., joined as to all but Part II–B–2, KAGAN, J., joined as to all but Parts III and IV and the judgment of dismissal, and THOMAS and ALITO, JJ., joined Part IV. THOMAS, J. submitted an opinion concurring partially and concurring to the judgment. ALITO,J., also joined. KAVANAUGH J. submitted an opinion concurring partly, to which BARRETT J. joined. KAGAN J. filed an opinion concurring partially and disapproving in part. GORSUCH,J., filed an opposing opinion. SOTOMAYOR joined.

Breyer, Roberts Kavanaugh and Barrett concurred in the judgement. Thomas, Alito, and Thomas were also included. Kagan concurred and dissented, Sotomayor & Gorsuch being the two dissenters.

This is Justice Breyer’s summary of the decision

Abu Zubaydah, a detainee in the Guantánamo Bay Naval Base, and his attorney filed an ex parte 28 U. S. C. §1782 motion in Federal District Court seeking to subpoena two former Central Intelligence Agency contractors. Zubaydah wanted information to use in Polish litigation about the treatment he received in 2002 and 2003 at a CIA site. Zubaydah claims that it was in Poland. See 28 U. S. C. §1782 (permitting district courts to order production of testimony or documents “for use in a proceeding in a foreign . . . tribunal”). The Government intervened. The government intervened and quashed the subpoenas, which were based upon the state secrets privilege. This privilege permits the Government to block the release of any information it believes would be harmful to national security. United States v. Reynolds, 345 U. S. 1, 6–7 (1953).

The majority of the Court of Appeals of Ninth Circuit accepted Government’s privilege claim. Husayn v Mitchell, 938 F. 3d 1123, 1134 (2019). It found that privileges did not include information regarding the exact location of detention sites, as Zubaydah claims to have seen in Poland. Ibid. The Court of Appeals believed that the site’s location had already been publicly disclosed and that the state secrets privilege did not bar disclosure of information that was no longer secret (and which, in any  event, was being sought from private parties). You are invited to sign up., at 1132–1133. The Government argues that the privilege should apply because Zubaydah’s discovery request could  force former CIA contractors to confirm the location of the detention site and that confirmation would itself significantly harm national security interests. We believe that the government has given sufficient evidence to support its claims of harm, and the privilege should be applied. We affirm the Ninth Circuit’s opposite holding.

Justice Gorsuch’s disapproval (again joined by Justice Sotomayor), begins:

We cannot be ignorant of the facts as citizens, and that is where it becomes dangerous. Watts v. Indiana, 338 U. S. 49, 52 (1949). The case goes well beyond this point. Zubaydah is seeking information on his torture by the CIA. It was two decades ago that the events were discussed. These events have been long declassified. These documents have been the subject of official reports, books, and movies. Still, the government seeks to have this suit dismissed on the ground it implicates a state secret—and today the Court acquiesces in that request. The government may be spared from some modest embarrassment by ending this suit. We should be respectful and not assume it will protect any secrets.

It ends:

This argument is not valid if it’s dismissed at the outset. This has nothing to do the possibility that some government agents may accidentally use “Poland” as a synonym. This has nothing to do the fact that Zubaydah can freely testify to his own experiences. Fears that courts might not be able to utilize familiar tools for disaggregating discovery about certain topics (location, foreign citizens) and others (interrogation methods, treatment, conditions of confinement), are all unfounded. The government seems to want this case dismissed in order to hinder the Polish criminal investigation, or at the very least delay further embarrassment regarding past crimes. This is perhaps understandable at one level. These facts are difficult to grasp. We know already that our government treated Zubaydah brutally—more than 80 waterboarding sessions, hundreds of hours of live burial, and what it calls “rectal rehydration.” The government may have additional evidence in its vaults. These facts are embarrassing, but there’s no secret in the state. The Court is committed to truth and law. Our vision should never be obscured by shame.