OPINION ANALYSIS

Fractured majority allows government to withhold information on torture at CIA black sites

The Supreme Court ruled on Thursday that information about the federal government’s post-9/11 torture program at CIA “black sites” is protected by the “state secrets privilege,” a doctrine that allows the government to withhold information in litigation when disclosing it would compromise national security.

The fractured decision in United States v. Zubaydah, written by Justice Stephen Breyer, brings an end to a years-long effort by a Guantanamo Bay detainee and could make it easier for the government to rely on the state secrets privilege in future cases. In a sharp dissent, two justices from opposite ends of the ideological spectrum – Justice Neil Gorsuch and Justice Sonia Sotomayor – decried the over-classification of documents and accused the government of invoking the privilege to avoid embarrassment.

The opinion came in the case of Zayn al-Abidin Muhammad Husayn, known as Abu Zubaydah, a Palestinian man who was mistakenly believed to be a high-level member of al-Qaeda when he was captured in Pakistan 20 years ago. While he was held at 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 the military prison at Guantanamo, where he remains today.

The dispute before the Supreme Court stems from Abu Zubaydah’s efforts to depose and seek documents from two former CIA contractors who Abu Zubaydah says supervised his interrogations. He wants to use the information in a criminal investigation in Poland, where prosecutors are investigating the abuse that occurred there. The U.S. government asserted that the information is protected by the state secrets privilege because, even though the location of the detention site has already been publicly disclosed, Abu Zubaydah’s request could compel former CIA contractors to confirm the location of the site – which would itself compromise national security. The Supreme Court agreed.

Breyer’s opinion for the court, which was joined by Chief Justice John Roberts and in large part by Justices Brett Kavanaugh and Amy Coney Barrett, stressed that although the court was faced with “only a narrow evidentiary dispute,” it 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 clear that the contractors’ responses “would tend to confirm (or deny) the existence of a CIA detention site in Poland.” Although that information has already been publicly, if unofficially, disclosed, Breyer wrote, the federal government has adequately explained why national security would be harmed if the contractors either confirmed or denied the information that Abu Zubaydah seeks. Specifically, Breyer noted, if the federal government confirms that there was a CIA “black site” in one country, the intelligence service in not only that country but also other countries will be less likely to cooperate with U.S. intelligence services in the future.

Breyer rejected the reasoning of the U.S. Court of Appeals for the 9th Circuit, which concluded that because the contractors are private individuals, rather than CIA employees, their disclosures would not provide confirmation or denial on behalf of the United States at all. Because the two 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 Zubaydah seeks would be tantamount to a disclosure from the CIA itself.”

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 the state secrets privilege is enough to satisfy the court that the privilege should apply. To the extent that Abu Zubaydah’s need for the 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 declaration about his treatment in Poland – which, Breyer contended, is the information that he really wants disclosed.

Justice Clarence Thomas filed an opinion, joined by Justice Samuel Alito, in which he agreed with the majority’s decision to dismiss Zubaydah’s discovery request. In Thomas’ view, the case should be dismissed because Abu Zubaydah hasn’t shown that he really needs the information that he is seeking, so there is no need for the court to decide whether the government has adequately supported its claim that the information is protected by the state secrets privilege.

Justice Elena Kagan agreed with parts of the majority’s 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 seeking evidence about his treatment at the black sites. The district court can and should be able to separate these two kinds of evidence, so that Abu Zubaydah receives information about the latter but not the former, Kagan wrote.

In a 30-page dissent that was joined by Justice Sonia Sotomayor, Justice Neil Gorsuch did not pull any punches, describing the torture of Abu Zubaydah in detail and lamenting recent trends toward “overclassification” of government documents.

The focal point of the case, Gorsuch wrote, was information about Abu Zubaydah’s treatment while he was detained at a black site between December 2002 and September 2003. No one, Gorsuch noted, contends that this information is a state secret.

Gorsuch rejected the idea that U.S. courts should unquestioningly accept the federal government’s assertion that Abu Zubaydah’s suit should be dismissed because disclosure of the information he is seeking would harm national security. The government should provide details to support its assertion, Gorsuch contended, and courts should decide for themselves whether the state secrets privilege applies. Gorsuch observed that although English monarchs “may have enjoyed the kind of latitude the government sought,” the “Constitution did not create a President in the King’s image but envisioned an executive regularly checked and balanced by other authorities.”

With efforts by the executive branch to classify information increasing 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 topic of the over-classification of documents – it is even more important, Gorsuch posited, for courts to conduct a careful review when the executive branch asserts the state secrets privilege to try to shield information from disclosure.

Even the majority, Gorsuch suggested, appears to agree that Abu Zubaydah can still file a new lawsuit seeking information about his treatment at the black site in Poland. But, Gorsuch continued, he shouldn’t have to do so. Instead, Gorsuch asserted, this case should go back to the district court, which should be able to determine which discovery requests can go forward and which ones are barred by the state secrets privilege.

What the government’s argument to dismiss the case really boils down to, Gorsuch posited, is a desire to obstruct the Polish criminal investigation “and avoid (or at least delay) further embarrassment for past misdeeds.” “But as embarrassing as these facts may be,” Gorsuch stressed, “there is no state secret here. This Court’s duty is to the rule of law and the search for truth. We should not let shame obscure our vision.”

This article was originally published at Howe on the Court.