State Secrets: How A Recent Supreme Court Decision Could Limit Judicial Independence

On March 3, 2022, the U.S. Supreme Court ruled against suspected terrorist Abu Zubaydah in United States. v. Zubaydah, declaring the U.S. government could invoke an evidentiary rule called the state secrets privilege to withhold evidence related to his torture in the name of national security. [1] This decision will have significant repercussions for the balance of power between different branches of the American government. An example of excessive judicial deference, the ruling could lead to a significant expansion in executive influence over judicial proceedings. Crucially, such expansion could provide a basis for selective governmental accountability and consequently threaten individual access to justice. 

The potential ramifications of United States v. Zubaydah owe much to the case’s details. Abu Zubaydah is a Palestinian man suspected of having served as an affiliate of the  Islamic extremist organization al-Qaeda in the years prior to and following the group’s terrorist attacks on September 11, 2001. Shortly after the attacks, Zubaydah was identified by U.S. intelligence as a high value target given his close connection to Osama bin Laden, al-Qaeda’s leader and the mastermind behind 9/11. It wasn’t until 2002, however, that Zubaydah was captured by American forces in Pakistan. Following his capture, Zubaydah was held for several months at a Central Intelligence Agency (CIA) “black site,” an undisclosed detention center where detainees essentially lack legal rights, in Poland. There, he was subjected to brutal enhanced interrogation techniques such as water-boarding. [2] 

Recently, Zubaydah decided to contribute to a Polish investigation seeking to scrutinize the U.S. government’s behavior in Poland during the War on Terror. To obtain information necessary for the investigation, Zubaydah attempted to subpoena and consequently exact evidence from two former CIA employees who were involved with his detention and torture. The U.S. government denied this request, claiming such evidence would pose a threat to national security and thus invoking the state secrets privilege. The state secrets privilege is an evidentiary rule which allows a case containing evidence related to national security matters to be dismissed preemptively. [3] It is employed in courts of law as a legal means of halting the dissemination of critical information, and has been employed on a limited basis ever since its formalization in 1952. [4] In United States v. Zubaydah, the U.S. Court of Appeals for the Ninth Circuit ordered the release of information related to Zubaydah’s detention in Poland after several rounds of appeals, claiming such information could not be defined as a state secret. [5] 

The Ninth Circuit’s ability to make such an evaluative assessment in an evidentiary dispute finds its roots in the 1952 landmark case United States v. Reynolds, which established the state secrets privilege as precedent set in common law. When a military plane carrying civilians and military employees in a series of domestic electronic equipment tests crashed and killed all aboard, the wives of the civilian passengers sued the U.S. military for compensation. The U.S. military, however, met such action with stiff resistance and claimed releasing information relevant to the case would endanger national security due to the tests being conducted aboard the flight in question. [6] While the District Court and Court of Appeals ruled in favor of the plaintiffs without this evidence, the Supreme Court eventually agreed with the military. [7] It held that having reasonably and exhaustively demonstrated its need for privilege, the U.S. military could limit the plaintiffs’ access to specific evidence, regardless of how crucial said evidence might be. [8] Aside from establishing the state secrets privilege itself, the Court also outlined a series of guidelines for its implementation. It stated that, for a privilege request to be valid, the U.S. government itself must first present “a formal claim of privilege.” [9] A court must then independently evaluate “whether the circumstances are appropriate for the claim of privilege.” [10] Finally, the court is obliged to undertake a balancing test in which it compares the validity of the government’s claim to privilege with how necessary the information requested by a respondent is to their case. [11] Under this test, greater necessity compels greater scrutiny of a government’s claim to privilege. It is the evaluative power which such guidelines provide to a court that is particularly relevant in United States v. Zubaydah. In fact, it is the potential diminishing of said power by the executive—an outcome central to this case—that can significantly weaken judicial independence. 

  The Supreme Court’s application of the Reynolds guidelines in Zubaydah’s case led it to conclude the U.S. government’s claim to state secrets privilege was substantiated. In its decision, the Court remanded United States v. Zubaydah with instructions urging the Ninth Circuit Court of Appeals to dismiss the case. While it is worth noting that due to the specificity of evidentiary disputes this ruling does not prevent Abu Zubaydah from filing future claims against U.S. officials, it effectively bars him from ever employing the vital testimony of the CIA operatives he had sought to subpoena. In fact, all justices except for Neil Gorsuch and Sonia Sotomayor expressed concern regarding Zubaydah’s discovery request because granting it would force the U.S. government to publicly acknowledge its “black site” operations in Poland. [12] Perhaps even more alarmingly, allowing Zubaydah to depose former CIA employees for the benefit of Polish proceedings would almost certainly “tend to confirm (or deny) the existence of a [specific] CIA detention site in Poland.” [13] These two admissions, the Court asserted, could endanger the U.S.’s operational credibility within both Poland and the wider international community. Additionally, the concurring justices deemed Zubaydah to be in moderate necessity of the information he was requesting, given how it had “already been made public through unofficial sources.” [14] However, the Court still maintained that U.S. acknowledgment of such public information could still “significantly harm national security interests” by representing a detrimental policy choice. [15] As a result of these conclusions, the justices were obliged to defer to the intelligence expertise of the CIA and its director, Mike Pompeo. [16] In exhibiting such deference, they have laid the foundations for a minimization of judicial authority and, as a result, executive accountability. 

This set of legal ramifications is directly related to the way the Court’s decision in United States v. Zubaydah could impact judicial employment of Reynolds. In agreeing with the U.S. government’s evaluation of CIA personnel testimony as a threat to national security, the Court has upheld a tradition of utmost deference which stands in conflict with the legal framework of Reynolds. [17] Instead of allowing United States v. Zubaydah to continue only without the testimony of CIA officials, the Court demanded that the case be dismissed as a whole. In doing so, it lost an opportunity to stand firm against executive encroachment. In her partial dissent, Justice Elena Kagan recognized this opportunity, stating in her opinion that the Court could have allowed “discovery [to] continue on a different topic: Zubaydah’s treatment from December 2002 through September 2003 and without reference to geography.” [18] Such a course of action would have reflected Reynolds’s intentions. As noted earlier, the Court had, in its 1952 decision, urged courts to be comprehensive in their analysis of government privilege claims by establishing clear procedural guidelines for granting state secrets privilege. [19] These guidelines, in calling for in camera review of evidence (independent evaluation conducted by judges and clerks), hoped to allow cases initially threatening to national security to continue via the invalidation of perilous evidence but the retention of all other relevant information. This was intended to grant courts protection from executive attempts to assume control of judicial proceedings. In fact, the Court asserted in Reynolds that “judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.” [20] Reynolds was decided with the notion of modest rather than utmost deference in mind. [21] In employing the latter kind of deference, the Court thus failed to abide by the notions of judicial independence found in the spirit of Reynolds. Such notions, when employed, provide the basis for holding different branches of government accountable and consequently for providing citizens with a political voice.

In fact, Zubaydah would appear to represent an expansion of Reynolds. The 1952 case requires that a court make “an independent determination of national security risk” when evaluating a request for state secrets privilege. [22] The Court’s instructions for the Ninth Circuit Court of Appeals, in suggesting outright dismissal, impede any such determination. Consequently, they result in a more facile implementation of Reynolds, one which lowers the evaluative criteria for a court assessing a state secrets privilege claim. Under the broad interpretation of Reynolds which Zubaydah has set, privilege claims will have to meet a lower burden of proof. 

This could have significant consequences on the balance of power between the judiciary and the executive. If courts begin to follow the example set by Zubaydah, they will be relinquishing the power to independently evaluate evidentiary disputes and consequently cases. A newly bolstered executive could exert the authority gained under Zubaydah to influence any such evaluation if it proves pertinent to its interests. On issues such as detainee treatment, the executive branch could then gain the power to control which, if any, of its actions are prosecuted. It would be able to cite state secrets privilege and, faced with a court abiding by Zubaydah’s leniency, swiftly receive a judicial response in its favor. Perhaps more worryingly, this could limit individual access to justice. Just like Abu Zubaydah, many individuals could face a future in which, faced by a meek judiciary, they struggle to hold U.S. officials accountable for their actions. 

edited by Kate Strong

Sources:

[1] United States v. Zubaydah, 857 U.S. 1 (2022).

[2] Ibid., p. 1.

[3] Carrie Newton Lyons, “The State Secrets Privilege: Expanding Its Scope Through Government Misuse,” Lewis & Clark Law Review, no. 99 (2007): 101-102.

[4] United States. v. Reynolds, 345 U.S. 1 (1953), p. 7. .

[5] Amy Howe, “Fractured Majority Allows Government to Withhold Information on Torture at CIA Black Sites,” SCOTUSblog, March 3, 2022, https://www.scotusblog.com/2022/03/fractured-majority-allows-government-to-withhold-information-on-torture-at-cia-black-sites/. 

[6] United States v. Reynolds, pp. 1-3.

[7] “United States v. Reynolds, 345 U.S. 1 (1953).” Justia Law, https://supreme.justia.com/cases/federal/us/345/1/#6-7.

[8] Ibid.

[9] United States. v. Reynolds, pp. 7-8.

[10] Ibid., p. 8.

[11] Lyons, “The State Secrets Privilege,” 103.

[12] United States v. Zubaydah, p. 9.

[13] Ibid., p. 9.

[14] Ibid., p. 10.

[15] Ibid.

[16] Howe, “Fractured Majority.”

[17] Lyons, “The State Secrets Privilege,” 108. 

[18]  United States. v. Reynolds, p. 19.

[19] Lyons, “The State Secrets Privilege,” 101.

[20] United States v. Reynolds, p. 9-10. 

[21] Lyons, “The State Secrets Privilege,” 108.

[22] Ibid., 124.