October 7, 2021

‘State Secrets’ Case Will Highlight SCOTUS’ Willingness to Protect Fundamental Liberties

Russ Feingold President

Russ Feingold
ACS President Russ Feingold

This week, the Supreme Court started its new Term. Most Supreme Court terms bring with them the possibility of change and controversy. But, as I’ve discussed previously, it is hard to remember a term with the potential to be as impactful and as damaging to the Court’s legitimacy and our constitutional rights as this one. On the line this term are reproductive rights, the ability of states to enact meaningful gun safety measures, and the separation of church and state. ACS will be vigilant and engaged during this consequential term as we see if this Court, and its conservative supermajority, serve its proper role in protecting constitutional rights or continues to choose an activist political agenda instead.

This week, the Supreme Court heard arguments in US v. Zubaydah. This case will be the first time that the Court has directly considered the “state secrets” privilege in over a decade, and it asks the question: how much information can the government keep secret about its post 9/11 torture program?

The facts of this case are daunting. Captured in Pakistan in 2002, Zubaydah has been in U.S. custody for almost two decades and is currently imprisoned at Guantanamo Bay. He previously was interrogated at a CIA black site in Poland as part of the United States’ extraordinary rendition program. There, he was waterboarded 83 times and subjected to other inhumane interrogation techniques, including sleep deprivation and forced nudity. In 2015, the European Court of Human Rights determined what we already knew, that “the treatment to which [he] was subjected by the CIA during his detention in Poland… amount[ed] to torture.”

Now, Zubaydah’s legal team is seeking to depose two former CIA contractors about their involvement in his torture, depositions that are needed by Polish prosecutors who are investigating whether any Polish nationals were complicit in the CIA’s torture program. The U.S. government is striving to block these depositions by hiding behind the states secrets privilege, arguing that Zubaydah’s detention and torture at CIA black sites are “state secrets,” despite the fact that most of the information is already widely known and has even been confirmed by an international court.

The states secrets privilege enables the government to withhold information if disclosure would harm national security. There are legitimate uses of this privilege. But, as with anything secretive, it is also ripe for abuse. This is true particularly when, as here, the privilege is being invoked to prevent the disclosure of information about the government’s involvement in torture, most of which is already publicly known.

As a country, we still have not fully come to terms with the domestic and international law violations that flowed from the law and policy decisions that the U.S. Government made in the weeks, months, and years following 9/11. Certainly, one of the most damning legal legacies of the post 9/11 era is our country’s legacy of torture. It is deeply concerning that even now, 20 years later, the U.S. government is trying to shield people from being held accountable for their involvement in torture.

At Thursday’s hearing, some Justices expressed surprise to learn that detainees are still being held at Guantanamo Bay and that their cases are still mired in the courts. This affirms the importance of another case, Al Hela v. Biden, which was heard by the en banc D.C. Circuit last week and asks if Guantanamo detainees have constitutional due process rights.

More broadly, the Zubaydah case could reveal where the Supreme Court stands on the boundaries of executive power. As my colleague and ACS Director of Policy & Program, Debra Perlin, explained, “How the Court approaches this case, and how much deference it gives to the U.S. government to determine on its own what if anything it should disclosure, will tell us a lot about the Court’s willingness to protect fundamental liberties in the face of executive power.”

We will be watching this case closely and will keep you updated.