March 03, 2022

Supreme Court Decides United States v. Zubaydah

On March 3, 2022, the U.S. Supreme Court decided United States v. Zubaydah, No. 20-827, holding that the state secrets privilege allows the Government to prevent the disclosure of information that could confirm or deny the existence of a CIA detention facility in Poland.

In furtherance of related legal proceedings in Europe, the respondent, Abu Zubaydah, petitioned a federal district court for leave to subpoena two former CIA contractors, seeking information about his treatment in 2002 and 2003 at a CIA detention site, which he claimed was in Poland. The Government intervened and moved to quash the subpoenas based on the state secrets privilege. The District Court dismissed Zubaydah’s petition, but the Ninth Circuit disagreed and authorized discovery into three topics: “the existence of a CIA detention facility in Poland, the conditions of confinement and interrogation at that facility, and Zubaydah’s treatment at that location.”

The Supreme Court reversed and directed that Zubaydah’s petition be dismissed. Writing for the Court, Justice Breyer first explained that the “state secrets privilege permits the Government to prevent disclosure of information when that disclosure would harm national security interests.” For the privilege to apply, “the Government must show a reasonable danger of harm to national security.”

Based on the specific language of Zubaydah’s discovery requests, the Court concluded that “any response [the contractors] give to Zubaydah’s subpoenas would tend to confirm (or deny) the existence of a CIA detention site in Poland.” Given that conclusion, the Court concluded, “the primary question for [its resolution] must be whether the existence (or non-existence) of a CIA detention facility in Poland falls within the scope of the state secrets privilege.” The Court held that it did, relying in part on the CIA Director’s declaration that “sensitive” relationships with foreign intelligence services are “critical” and “based on mutual trust that the classified existence and nature of the relationship will not be disclosed.” What’s more, the Court explained, “it stands to reason that a former CIA insider’s confirmation of confidential cooperation between the CIA and a foreign intelligence service could damage the CIA’s clandestine relationships with foreign authorities.” Finally, disclosure by the contractors would be tantamount to disclosure by the CIA itself, the Court reasoned, given that the contractors worked for the CIA and had a key role in the events at issue. Weighed against Zubaydah’s need for the information — which the Court described as “not great,” given that he cared far more about “what happened” at the detention facility than he did about where it was located — those security considerations persuaded the Court that the state secrets privilege applied.

Writing for a plurality of the Court, Justice Breyer concluded that the District Court should dismiss Zubaydah’s subpoena rather than conduct additional proceedings, because the balance of the Government’s security interest and Zubaydah’s need for the information tipped in favor of discontinuing the proceedings rather than allowing them to continue. Justice Thomas, writing for himself and Justice Alito, concurred in the judgment of dismissal on the ground that Zubaydah’s need for the information was sufficiently weak that no inquiry into the Government’s security justification was necessary or appropriate.

Justice Breyer delivered the opinion of the Court, except as to Parts II-B-2 and III. Chief Justice Roberts joined that opinion in full. Justices Kavanaugh and Barrett joined as to all but Part II-B-2. Justice Kagan joined as to all but Parts III and IV and the judgment of dismissal. Justices Thomas and Alito joined Part IV. Justice Thomas filed an opinion concurring in part and concurring in the judgment, in which Justice Alito joined. Justice Kavanaugh filed an opinion concurring in part and joined by Justice Barrett. Justice Kagan filed an opinion concurring in part and dissenting in part. Justice Gorsuch filed a dissent in which Justice Sotomayor joined.

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