CAN A NON-SECRET BE A STATE SECRET? EXAMINING STATE SECRETS PRIVILEGE IN UNITED STATES V. ZUBAYDAH

By: Kimberly Ortleb, Volume 106 Staff Member

On October 6, 2021, the Supreme Court heard oral arguments for United States v. Zubaydah,[1] which presents the question of how far state secrets privilege extends. Zayn al-Abidin Muhammad Husayn (“Zubaydah”) was disappeared and tortured as a part of the CIA’s “enhanced interrogation” program in 2002.[2] From December 2002 to September 2003, the CIA held Zubaydah at a black site in Poland.[3] After transferring Zubaydah to several CIA black sites, the CIA relocated Zubaydah to Guantanamo Bay in 2006, where he has been imprisoned ever since without charges.[4]

Since 2010, proceedings in Poland and the European Court of Human Rights (“ECHR”) have investigated Zubaydah’s detention and torture in Poland.[5] In 2017, Zubaydah and his counsel filed an application for discovery in the United States to subpoena James Mitchell and John Jessen to support the investigation in Poland.[6] Mitchell and Jessen were CIA contractors that developed the CIA “enhanced interrogation” protocol and witnessed the treatment of Zubaydah while he was detained in Poland.[7] The district court granted the government’s motion to quash the subpoena.[8] The Ninth Circuit reversed and ordered the district court to conduct an in camera review.[9] The government petitioned the decision, and the United States Supreme Court will determine whether the information Zubaydah seeks falls under the state secrets privilege.[10]

I. STATE SECRETS PRIVILEGE

The state secrets privilege was established to protect information that would compromise national security.[11]The doctrine allows the government to prevent the disclosure of information when “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.”[12] To assess the assertion of privilege, the court must (1) “ascertain that the procedural requirements for invoking the state secrets privilege have been satisfied”; (2) “make an independent determination whether the information is privileged”; and (3) determine “how the matter should proceed in light of the successful privilege claim.”[13] The privilege may not be used to “shield any material not strictly necessary to prevent injury to national security; and, whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter.”[14]

II. SUMMARY OF ARGUMENTS

The Ninth Circuit concluded that “in order to be a ‘state secret,’ a fact must first be a ‘secret,’” so the government could not hide information that was already public.[15] The government does not dispute that much of the information regarding the CIA’s detention program, including details specific to Zubaydah’s treatment, is not privileged. However, the government argues that disclosure by the government of the location of the black sites presents a national security risk because it would breach the trust of and engender backlash from cooperating countries.[16]

Zubaydah asserts that the information he seeks is not a secret, so the information cannot be protected by the state secrets privilege.[17] Zubaydah emphasized that he only needs Mitchell and Jessen to testify about the treatment of Zubaydah while Zubaydah was in Poland. Zubaydah would ask Mitchell and Jessen questions regarding whether they were at the same black site as Zubaydah from December 5, 2002 to September 23, 2003, whether they interacted with Zubaydah during that time, what kind of interrogation techniques they used, and Zubaydah’s confinement conditions during that period.[18] The government allowed Mitchell and Jessen to testify about similar information in Salim.[19]Zubaydah does not need Mitchell and Jessen to confirm that a CIA black site was located in Poland—Zubaydah has already independently confirmed that information.[20]

III. THE TESTIMONY SHOULD NOT BE PROTECTED BY STATE SECRETS PRIVILEGE

The Supreme Court should deny the petition for three reasons. First, the information is not a state secret because it is not a secret. Second, the government overstates the national security concerns. Third, finding for the petitioners creates questionable precedent, especially in terms of breaches of international human rights law.

A. Public Information Is Not a Secret

The Court should not consider public information a state secret because that contravenes the purpose of state secrets privilege. As the name of the privilege suggests, the privilege was designed to protect secrets that would compromise national security. Here, the information is already public, so it is not a secret, and, because it is already public, it is not the information itself that compromises national security.[21]

The information that the government seeks to protect (that a black site was located in Poland) is public knowledge, so the state secrets doctrine should not apply. The US government released information about Zubaydah’s treatments at black sites generally,[22] and it is public knowledge that a black site was located in Poland,[23] but Zubaydah needs Mitchell and Jessen to testify about Zubaydah’s treatment in Poland. The testimony will aid the Polish investigation into whether Polish officials should be held accountable for human rights abuses. Note that the government is not claiming that information regarding Zubaydah’s treatment is privileged, just that a black site was located in Poland is privileged. The determination for what constitutes a state secret is rife with flexibilities. This is the perfect place to create a concrete rule—that public information cannot be the basis for a claim under state secrets privilege.

B. The Government’s National Security Claims Are Overstated

The government cites generic concerns that confirming that a black site was in Poland would constitute a breach of trust and would cause backlash from other countries.[24] However, that information is already public, so admitting the information is inconsequential and should not be a permissible basis for the government’s national security concerns. Poland’s former president has already confirmed Polish cooperation with the CIA’s “enhanced interrogation” program, so any admission from the government would not have appreciable consequences for US national security. Additionally, as the Ninth Circuit found, the statements of two CIA contractors in a court proceeding does not equate to the government disclosing information. The CIA contractors are not voices for the government.

The government has a history of overstating national security concerns, including in Reynolds, the seminal state secrets case.[25] In Reynolds, the government successfully asserted state secrets privilege over an Air Force accident report, arguing that they contained information about a secret mission.[26] Almost 50 years later, the Air Force declassified the documents, which had no reference to a secret mission.[27] The prosecution argues that the Court should review assertions of national security with the utmost deference,[28] but Reynolds shows that the court should not give the government the utmost deference because the government has a history of making fraudulent claims of national security. The Court should learn from Reynolds and not take the government’s claim of state secrets at face value, instead requesting an in camera review.

C. Preventing the Testimony Creates Questionable Precedent

The government should not be able to make vague assertions of state secrets and be granted the utmost deference concerning their validity. Such treatment of governmental information creates a black box with no accountability. With no accountability comes grave human rights abuses, as the US government saw after 9/11 with the creation of CIA’s “enhanced interrogation” program.[29] The courts should not stand idle, giving the executive branch broad discretion to assert privilege, especially when the aftermath of 9/11 showed the horrors that the government is capable of when there is no oversight. Additionally, the courts should be wary of the government claiming national security to protect information regarding violations of human rights and international law.[30] Claiming that such information is a state secret would allow past human rights abuses to stay shielded and show the executive branch that future human rights abuses will be shrouded in secrecy. Thus, courts should review state secrets privilege with the utmost deference. Instead, the Court should demand an in camera review.

IV. CONCLUSION

This case presents a question of what constitutes a state secret, and whether public information could be covered by the privilege. The Supreme Court has the opportunity to establish limits to the state secrets privilege—a privilege that has historically been applied broadly with deference to the executive branch. By upholding the Ninth Circuit’s decision, the Supreme Court would promote transparency, while still balancing the needs of national security. Thus, the Supreme Court should affirm.

 

[1] Zubaydah v. Mitchell, 938 F.3d 1123, (9th Cir. 2019), argued sub nom. United States v. Zubaydah, 141 S. Ct. 2564 (2021).

[2] Zubaydah v. Mitchell, 938 F.3d 1123, 1126 (9th Cir. 2019).

[3] Husayn v. Poland, App. No. 7511/13, ¶ 588 (Feb. 16, 2015), https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-146047%22]}. “Black sites” are secret prisons operated by the CIA to interrogate subjects, frequently using torture to obtain information. Julie Vitkovskaya, What Are “Black Sites”: 6 Key Things to Know About the CIA’s Secret Prisons Overseas, Wash. Post (Jan. 25, 2017), https://www.washingtonpost.com/news/checkpoint/wp/2017/01/25/what-are-black-sites-6-key-things-to-know-about-the-cias-secret-prisons-overseas.

[4] Brief on the Merits for Respondents Abu Zubaydah and Joseph Margulies at 1, United States v. Zubaydah, No. 20-827 (U.S. argued Oct. 6, 2021). Zubaydah’s habeas corpus action has been pending in D.C. for the last 14 years. Oral Argument at 46:51, United States v. Zubaydah, No. 20-827 (U.S. argued Oct. 6, 2021), https://www.oyez.org/cases/2021/20-827. Zubaydah’s extended detainment is outside of the scope of this Post as well as the case before the Supreme Court.

[5] Zubaydah v. Mitchell, 938 F.3d 1123, 1127 (9th Cir. 2019).

[6] Id. at 1126.

[7] Zubaydah v. Mitchell, 938 F.3d 1123, 1127 (9th Cir. 2019).

[8] Id. at 1126.

[9] Id. at 1136–37 (9th Cir. 2019).

[10] Zubaydah v. Mitchell, 938 F.3d 1123, (9th Cir. 2019), argued sub nom. United States v. Zubaydah, 141 S. Ct. 2564 (2021).

[11] United States v. Reynolds, 345 U.S. 1, 10 (1953).

[12] Id.

[13] Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1080 (9th Cir. 2010) (quoting Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1202 (9th Cir. 2007)).

[14] Ellsberg v. Mitchell, 709 F.2d 51, 58 (D.C. Cir. 1983).

[15] Zubaydah v. Mitchell, 938 F.3d 1123, 1133 (9th Cir. 2019).

[16] Id. at 1132.

[17] Brief on the Merits for Respondents Abu Zubaydah and Joseph Margulies, supra note 4, at 21.

[18] Id. at 26–27.

[19] Salim v. Mitchell, No. 2:15-cv-286-JLQ (E.D. Wash. 2016)

[20] Id. at 11–15.

[21] Rather, the US government argues that the government’s disclosure of the information compromises national security. This concern is not in the purview of the state secrets privilege.

[22] See S. Rep. No. 113-288 (2014).

[23] The ECHR determined that Zubaydah was tortured at the CIA black site in Poland, and the former Polish president admitted in 2012 that Poland “agreed to the intelligence cooperation with the Americans.” Zubaydah v. Poland, App. No. 7511/13, ¶ 511 (Feb. 16, 2015), https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-146047%22]} (“[T]he treatment to which the applicant was subjected by the CIA during his detention in Poland . . . amounted to torture within the meaning of Article 3 of the [UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment].”). Brief on the Merits for Respondents Abu Zubaydah and Joseph Margulies, supra note 4 at 12.

[24] Zubaydah v. Mitchell, 938 F.3d 1123, 1132 (9th Cir. 2019).

[25] United States v. Reynolds, 345 U.S. 1 (1953).

[26] Id. at 4–5.

[27] Ian Millhiser, The Supreme Court Confronts the CIA’s Worst-Kept Secret, Vox (Oct. 6, 2021), https://www.vox.com/2021/10/6/22701048/supreme-court-torture-cia-abu-zubaydah-state-secrets-guantanamo-united-states.

[28] Brief for the United States at 22–26, United States v. Zubaydah, No. 20-827 (U.S. argued Oct. 6, 2021).

[29] Benedikt Goderis & Mila Versteeg, Human Rights Violations After 9/11 and the Role of Constitutional Constraints, 41 J. Legal Stud. 131 (2012).

[30] Aleksandra Gasztold, A Conspiracy of Silence: The CIA Black Sites in Poland, Int’l Pol., Oct. 2021, at 1, 1 (“The Al-Qaeda fighters imprisoned in these detention facilities were denied the right to be treated as prisoners of war, while the ‘enhanced interrogation techniques’ performed on them constituted a violation of international law, especially the Geneva Conventions.”); Zubaydah v. Poland, App. No. 7511/13, ¶ 511 (Feb. 16, 2015), https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-146047%22]}.