The ongoing controversy over the use of torture against terrorist captives, to get them to talk, and the secrecy that prevents full disclosure of that history reaches the Supreme Court on Wednesday. It arises in a test case over when a victim of the Central Intelligence Agency’s “enhanced interrogation” program at so-called “black sites” overseas can force the release of key facts about those abuses when the government insists that those facts are “state secrets.”
This is the only case scheduled for a hearing on Wednesday. It is set for one hour, but very likely will run longer. The “live” audio of the hearing can be heard at the Quick Links section of the Court’s online homepage – supremecourt.gov The hearing audio also can be heard on TV at c-span.org/supremecourt and on smartphones at C-Span Now App.
The case is United States v. Zubaydah. It involves a 50-year-old Palestinian national, Abu Zubaydah (his birth name is Zayh al-Abidin Muhammad Husayn), who was captured in Pakistan in March 2002. Suspected by the CIA of being a terrorist leader of Al Qaida, a claim strongly disputed later by the Senate Intelligence Committee and by numerous official documents, he has never been charged with a crime.
After being detained at several CIA-operated detention centers (“black sites”) overseas, he was transferred to the U.S. Navy prison at Guantanamo Bay, Cuba, in September 2006, and remains there. Various public reports show that he was subjected to brutal methods of torture during his foreign captivity, and his lawyers claim he now has permanent brain damage. His harsh treatment is at the core of his case in the Supreme Court.
Background: America – unlike Britain — has no Official Secrets Act to control the public disclosure of government secrets about defense policy and foreign affairs, but the U.S. has borrowed from Britain a version of a legal concept that goes back to the 18th Century. In English history, it has been known as the “Crown Privilege.” A king or queen exercising that privilege could prevent the disclosure of military reports and other papers held by the Crown. In modern Britain, that authority is not as absolute as it once was.
In the United States, the concept of “state secrets” existed as long ago as the trial for treason of Aaron Burr in 1807. Chief Justice John Marshall upheld the right of Burr to obtain correspondence between President Thomas Jefferson and the general who was Burr’s main accuser. Marshall, however, also ruled that any information that would endanger public safety had to be withheld.
Today in the United States, the idea exists as part of the law of evidence. Although there is a tradition in American courts that the public has a right to everyone’s evidence, there are exceptions. Various “privileges” restrict or bar the disclosure in court of private data – what a spouse says to a marital partner, what a patient says to a doctor, what a client says to a lawyer, what a religious believer says to a priest or pastor. The “state secrets” idea is one of those, a “privilege” against disclosure that can be claimed by a top government official.
The Supreme Court’s most important decision on “state secrets,” and how courts are to handle access to such information, is the Korean War era ruling in United States v. Reynolds. That 1953 decision arose out of a 1948 crash of a B-29 bomber aircraft at Waycross, Georgia, after a fire broke out in one of its engines. The plane was on a secret mission, to test highly classified military equipment.
Six of the nine crew members and three civilian observers died in the crash. The widows of the civilian observers, led by a New Jersey woman, Patricia J. Reynolds, later sued the federal government, claiming negligence. They sought access to the Air Force’s official investigation of the incident, as well as statements given during that investigation by the three surviving crew members. Citing the B-29’s “highly secret mission,” the government invoked the “state secrets” privilege to prevent disclosure of the information.
The families’ legal campaign ultimately failed. The Air Force report remained secret until a half-century later; in 2000, a daughter of one of the women killed found the report by surfing the Internet. It did show negligence in the design and operation of the aircraft, and essentially revealed no secrets. The families returned to court, seeking to reopen their case, but that effort ended in 2005 when the Supreme Court refused to review a lower court decision that the government’s earlier claim of “state secrets” did not amount to a fraud on the court system.
What is left from this prolonged episode, though, is the Supreme Court’s 1953 Reynolds decision. To this day, it remains the guiding source of judicial review of “state secrets” claims. Rejecting the idea that the United States should imitate the absolute form of the “Crown Privilege,” the Court put some restrictions on “state secrets” claims.
In Abu Zubaydah’s case, a lower federal appeals court drew three principles from the Reynolds ruling: a claim of secrecy must be made in specific detail by a high-ranking government official, a court must make its own, independent ruling on whether the information at issue is “privileged” (that is, its disclosure would harm national security), and the court must decide how to move forward if it has found some (but not all) of the disputed information satisfies the claim of secrecy.
It is no longer considered a secret, because of repeated public disclosures, that the CIA did use torture methods at its overseas detention centers, nor is it a secret that Zubaydah was mistreated in that way. It also is no secret that the “enhanced interrogation” method was developed for the CIA by two U.S. private contractors, James Elmer Mitchell and John Jensen. And it is no longer a secret that those two ran a torture program at a CIA site in Poland.
The case turns on a demand by Zubaydah and his lawyer for the opportunity to question Mitchell and Jensen, to obtain information for use in an ongoing criminal investigation by Polish government authorities into any role Polish officials may have had at the “black site.” After the U.S. government refused to help in that probe, Polish officials asked Zubaydah’s lawyer to take action.
A federal trial judge, responding to a “state secrets” claim by then-CIA Director Michael Pompeo, ruled that the non-secret information about the Poland site could not be separated out from the secret, and thus dismissed Zubaydah’s demand. The dismissal of the subpoena was overturned by a federal appeals court, concluding that the trial judge should make a further attempt to separate non-secret data from secrets. That tribunal did find that some of the information could endanger national security, if disclosed.
The Trump Administration took the case to the Supreme Court, and the Biden Administration has continued to pursue it there. The appeal claims that, despite public revelations about the CIA program, about the Poland site, and about Zubaydah’s treatment, national security could still be damaged by further revelations. The Justices agreed in April to decide the dispute during this term.
The questions before the Court: Did the appeals court wrongly deny the “state secrets” claim by making its own assessment of whether details about the Poland detention site would harm national security? Did the appeals court wrongly allow the Zubaydah claim for information to go forward against the CIA contractors? Did the federal courts have any authority to rule on the Zubaydah demand, because Congress has barred court cases challenging conditions of confinement of terrorist suspects held at Guantanamo Bay?
Significance: Court cases about potential disclosures of the government’s defense and foreign affairs secrets are rare, so each one of them potentially can expand or narrow officials’ power to prevent such revelations.
In recent years, the federal government – in both Democratic and Republican administrations – has become considerably more aggressive in asserting the “state secrets” privilege. The claim has been made earlier and earlier in court cases, often seeking to shut them down altogether before they run the risk of any disclosures of protected information. Human rights groups and legal reform groups have long complained that “state secrets” claims are often exaggerated, and also that intelligence agencies routinely classify too much information as secret.
Lower courts have struggled to sort out the meaning of the Supreme Court’s 1953 Reynolds decision, trying to maintain some measure of independence to weigh government secrecy claims while at the same showing sensitivity to the potential harms to national security if disclosures are ordered. The basic disagreement between the trial court and the appeals court in this very case illustrates how that struggle can play out.
The Supreme Court, of course, had complete discretion to deny review of the government’s appeal; there was no mandatory duty to review it. Had the trial court been allowed to proceed under what the appeals court had ordered, it presumably could have adopted procedures to conduct some of the case behind closed doors, to see how it developed. The Supreme Court, though, does not often resist demands by the federal government for review of major cases involving significant federal policy.
There is also much symbolic meaning in the Abu Zubaydah case, because of the grave human rights abuses that have sometimes marked the United States government’s “war on terrorism” and accountability for that, because of what Zubaydah is known to have suffered, because of the continued shame of operating the terrorist prison camp at Guantanamo Bay with its deeply flawed military tribunal system, because of sensitive diplomatic relations between the United States and its allies, and because of the underlying and abiding threat of global terrorism.
The Supreme Court’s next hearings will be on Tuesday; Monday is a legal holiday, marking Columbus Day. On Tuesday, the Court holds a hearing on the first of what may be several cases this term on abortion rights; this particular case is about which state legal official may defend in court a state law restricting access to abortion. A second hearing will seek to clarify when a civil rights lawsuit may be filed to challenge officers’ entry, without a warrant, into a private home to investigate possible child abuse. Both cases will be discussed here on Monday.
