Supreme Court Splinters Over State Secrets Privilege

Justice Breyer delivers the opinion for the Court in a heavily fractured opinion in U.S. v. Zubaydah.

This morning the Supreme Court issued its opinion in United States v. Zubaydah, in which the Court concluded that the U.S. Court of Appeals for the Ninth Circuit was wrong to conclude the state secrets privilege did not apply to information that could confirm or deny the existence of a CIA detention site in Poland in the context of a discovery dispute.

Justice Stephen Breyer delivered the opinion for the Court, but the line-up is a mess. Here is how the Court splintered:

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., filed an opinion concurring in part and concurring in the judgment, in which ALITO, J., joined. KAVANAUGH, J., filed an opinion concurring in part, in which BARRETT, J., joined. KAGAN, J., filed an opinion concurring in part and dissenting in part. GORSUCH, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined.

So those justice concurring in the judgment were Breyer, Roberts, Kavanaugh, Barrett, Thomas and Alito. Kagan concurred in part and dissented in part, and Sotomayor and Gorsuch were the two dissenters.

Here is how Justice Breyer summarizes 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 sought to obtain information (for use in Polish litigation) about his treatment in 2002 and 2003 at a CIA detention site, which Zubaydah says was located 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. It moved to quash the subpoenas based on the state secrets privilege. That privilege allows the Government to bar the disclosure of information that, were it revealed, would harm national security. United States v. Reynolds, 345 U. S. 1, 6–7 (1953).

The Court of Appeals for the Ninth Circuit mostly accepted the Government's claim of privilege. Husayn v Mitchell, 938 F. 3d 1123, 1134 (2019). But it concluded that the privilege did not cover information about the location of the detention site, which Zubaydah alleges to have been 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). Id., 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. In our view, the Government has provided sufficient support for its claim of harm to warrant application of the privilege. We reverse the Ninth Circuit's contrary holding.

Justice Gorsuch's dissent (again, joined by Justice Sotomayor) begins:

There comes a point where we should not be ignorant as judges of what we know to be true as citizens. See Watts v. Indiana, 338 U. S. 49, 52 (1949). This case takes us well past that point. Zubaydah seeks information about his torture at the hands of the CIA. The events in question took place two decades ago. They have long been declassified. Official reports have been published, books written, and movies made about them. 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. Ending this suit may shield the government from some further modest measure of embarrassment. But respectfully, we should not pretend it will safeguard any secret.

And it concludes:

In the end, only one argument for dismissing this case at its outset begins to make sense. It has nothing to do with speculation that government agents might accidentally blurt out the word "Poland." It has nothing to do with the fiction that Zubaydah is free to testify about his experiences as he wishes. It has nothing to do with fears about courts being unable to apply familiar tools to disaggregate discovery regarding some issues (location, foreign nationals) from others (interrogation techniques, treatment, and conditions of confinement). Really, it seems that the government wants this suit dismissed because it hopes to impede the Polish criminal investigation and avoid (or at least delay) further embarrassment for past misdeeds. Perhaps at one level this is easy enough to understand. The facts are hard to face. 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." Further evidence along the same lines may lie in the government's vaults. But as embarrassing as these facts may be, 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.