A fractured majority allows the government to withhold torture information from CIA black sites
By Amy Howe
March 3, 2022
at 3:53 p.m.
The Supreme Court ruled Thursday that information about the federal government’s post-9/11 torture program on CIA “black sites” is protected by “state secrets privilege,” a doctrine that allows the government to withholding information in the context of litigation when its disclosure would compromise national security.
the fractured decision in United States vs. Zubaydah, written by Judge Stephen Breyer, ends a years-long effort by a Guantanamo Bay detainee and could make it easier for the government to rely on state secrets privilege in future cases. In sharp dissent, two judges at opposite ends of the ideological spectrum – Judge Neil Gorsuch and Judge Sonia Sotomayor – denounced the overclassification of documents and accused the government of invoking privilege to avoid embarrassment.
Opinion came in the case of Zayn al-Abidin Muhammad Husayn, known as Abu Zubaydah, a Palestinian who was mistakenly considered a high-level al-Qaeda member when he was captured in Pakistan 20 years ago. While being held in several overseas locations, including one in Poland, the CIA repeatedly subjected Abu Zubaydah to so-called “enhanced interrogation” techniques such as waterboarding and sleep deprivation before he was transferred to Guantanamo military prison, where he remains today. .
The Supreme Court dispute stems from Abu Zubaydah’s efforts to file and obtain documents from two former CIA contractors who Abu Zubaydah says oversaw his interrogations. He wants to use the information in a criminal investigation in Poland, where prosecutors are investigating abuses that took place there. The US government has claimed that the information is protected by state secrets privilege because, although the location of the detention site has already been publicly disclosed, Abu Zubaydah’s request could compel former contractors to the CIA to confirm the location of the site – which would compromise national security. The Supreme Court agreed.
Breyer’s opinion for the court, which was joined by Chief Justice John Roberts and largely by Justices Brett Kavanaugh and Amy Coney Barrett, pointed out that although the court only faced ” a narrow evidentiary dispute”, he did not condone terrorism or torture. . Breyer explained that a key factor in his analysis was the language used in Abu Zubaydah’s request for information, which makes it clear that contractors’ responses “would tend to confirm (or deny) the existence of a CIA detention site in Poland”. Although this information has already been released publicly, even unofficially, Breyer wrote, the federal government has adequately explained why national security would be compromised if contractors confirmed or denied the information Abu Zubaydah was seeking. Specifically, Breyer noted, if the federal government confirms that there is a CIA “black site” in a country, the intelligence service of not only that country, but also other countries, will be less likely to cooperate. with US intelligence in the future.
Breyer rejected the reasoning of the United States Court of Appeals for the 9th Circuit, which concluded that because the contractors are individuals, rather than CIA employees, their disclosures would provide no confirmation or denial on behalf of the United States. Because both worked for the CIA as contractors and played a “central role” in the events at the heart of this case, Breyer said, “their confirmation (or denial) of the information sought by Zubaydah would amount to a CIA disclosure himself.
Breyer concluded that Abu Zubaydah’s case should be dismissed. At least in this case, he explained, the affidavit submitted by former CIA director Mike Pompeo asserting state secrets privilege is enough to convince the court that the privilege should apply. To the extent that Abu Zubaydah’s need for information is relevant, Breyer continued, much of that information is already in the public domain. And the government has indicated that it will allow Abu Zubaydah to submit his own statement about his treatment in Poland – which Breyer says is the information he really wants to disclose.
Judge Clarence Thomas filed an opinion, joined by Judge Samuel Alito, in which he agreed with the majority decision to dismiss Zubaydah’s discovery request. In Thomas’ view, the case should be dismissed because Abu Zubaydah has not demonstrated that he really needs the information he seeks, so there is no need for the court to decide whether the government has sufficiently substantiated his assertion that the information is protected by state secrets privilege.
Judge Elena Kagan agreed with parts of the majority opinion, but she would have sent the case back to the district court instead of dismissing it. She explained that “the government’s national security concerns all relate to confirming the location of detention sites.” But Abu Zubaydah is also looking for evidence of his treatment in black sites. The district court can and should be able to separate these two types of evidence, so that Abu Zubaydah receives information about the second but not the first, Kagan wrote.
In a 30-page dissent joined by Judge Sonia Sotomayor, Judge Neil Gorsuch took no chances, detailing Abu Zubaydah’s torture and lamenting recent trends to ‘overclassify’ government documents .
The central point of the case, Gorsuch wrote, was information about Abu Zubaydah’s treatment while he was held in a black site between December 2002 and September 2003. No one, Gorsuch noted, claims that this information are a state secret.
Gorsuch rejected the idea that US courts should accept without question the federal government’s assertion that Abu Zubaydah’s prosecution should be dismissed because disclosing the information he is seeking would harm national security. The government should provide details to back up its claim, Gorsuch argued, and the courts should decide for themselves whether state secrets privilege applies. Gorsuch observed that although English monarchs “may have enjoyed the kind of latitude sought by government”, the “Constitution did not create a president in the image of the king, but envisaged an executive regularly checked and balanced by d ‘other authorities’.
While the executive branch’s efforts to classify information have increased dramatically over the past 20 years – Gorsuch observed wryly that the government had even classified a memo from one senior military official to another on the subject of the overclassification of documents – even more important, Gorsuch posited, is that the courts exercise scrutiny when the executive branch asserts state secrets privilege in an attempt to protect information from disclosure.
Even the majority, Gorsuch suggested, seem to agree that Abu Zubaydah can still sue again for information about his treatment at the black site in Poland. But, Gorsuch continued, he shouldn’t have to. Instead, Gorsuch argued, this case should go to the district court, which should be able to determine which discovery requests can go forward and which are barred by state secrets privilege.
According to Gorsuch, the government’s argument for dismissing the case really boils down to a desire to obstruct the Polish criminal investigation “and avoid (or at least delay) further embarrassment for past wrongdoings.” “But as embarrassing as these facts may be,” Gorsuch stressed, “there is no state secret here. The duty of this Court is to ensure the rule of law and the search for truth. We must not let shame cloud our vision.
This article has been originally published at Howe on the Court.