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Justices Explore State Secrets Doctrine in CIA Black Site Case (1)

Oct. 6, 2021, 3:54 PMUpdated: Oct. 6, 2021, 6:14 PM

The Supreme Court examined the extent to which the U.S. government can refuse to turn over information under the “state secrets privilege,” even where the information is widely known.

The case argued on Wednesday involves efforts to get information from the federal government for a Polish investigation into the torture of Abu Zubaydah at CIA black sites within the foreign country.

Zubaydah was the first “War on Terror” detainee subjected to torture abroad by U.S. intelligence, according to a 2014 Senate report, and is still detained at the U.S. military base at Guantanamo Bay, Cuba, although the government now acknowledges that he’s not—as originally thought—a member of al-Qaeda.

“We’re not talking about a secret anymore,” said Zubaydah’s lawyer, David Klein of Pillsbury Winthrop. “We’re talking about a governmental wish not to assist this Polish investigation.”

“You claim you have everything and yet you have a need for this additional information,” Justice Samuel Alito said. “The subtlety of this is somehow escaping me,” he added.

But that argument seemed to go both ways.

“At a certain point, it becomes a little bit farcical, this idea of the assertion a privilege,” Justice Elena Kagan said, adding that “if everybody knows what you’re asserting privilege on, like, what exactly does this privilege” mean?

Similarly, Justice Clarence Thomas asked the government’s lawyer, Brian Fletcher, “What difference would it make” to hand over this information given that it is so widely known?

Fletcher responded that “there’s a critical difference between speculation, even widespread speculation,” that Zubaydah was tortured at a CIA black site in Poland and formal confirmation by the U.S. “Respondents seek discovery that would compel a breach of that trust” that’s required for covert operations between the U.S. and foreign governments “by confirming or denying the existence of an alleged CIA facility in Poland,” Fletcher said.

He said courts “should be hesitant to second-guess the executive branch” on “core matters of national security.”

And the court seemed inclined to do so. “Courts are going to know less about that than the CIA director does,” Kagan said.

But as soon as Fletcher got up to deliver his rebuttal, Justice Neil Gorsuch interrupted to ask why the government doesn’t just let Zubaydah testify. “Why not make the witness available?”

What followed was a tense exchange between Fletcher and Justices Gorsuch, Sonia Sotomayor, and Stephen Breyer. Fletcher said Zubaydah was “subject to the same restrictions that apply to other similar detainees at Guantanamo,” including that his “communications are subject to security screening for classified information and other security risks.”

That didn’t satisfy the justices. “I understand there are all sorts of rules and protective orders,” Gorsuch said. “I’m asking much more directly, and I’d just really appreciate a straight answer to this, will the government make Petitioner available to testify as to his treatment during these dates?” Gorsuch said that it provided the government with a sort of “off ramp.”

Fletcher agreed to provide an answer in a subsequent filing.

As an aside, Breyer asked why Zubaydah was even still in Guantanamo given that there are no longer “active combat operations against Taliban fighters” in Afghanistan. “There has been a habeas proceeding pending in D.C. for the last 14 years,” but “it simply has not moved forward,” Klein responded.

The dispute is one of two state secrets cases that the government will hear this term considering when the U.S. can invoke the privilege on the basis of national security.

The case is United States v. Zubaydah, U.S., No. 20-827.

(Updates with quotes from the argument starting in fourth paragraph.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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