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Justices Gorsuch and Sotomayor Dissent Together as SCOTUS Allows CIA ‘Black Sites’ to Remain a ‘State Secret’

United States Supreme Court Justices Neil Gorsuch (L) and Sonia Sotomayor (R) pictured posing for an official court photo.

United States Supreme Court Justices Neil Gorsuch (L) and Sonia Sotomayor (R) during an official court portrait session.

In a fractured opinion Thursday, the Supreme Court of the United States held that the federal government is entitled to invoke its state-secrets privilege to hold back information about secret overseas CIA prisons known as “black sites.”

The case, styled as United States v. Zubaydah, made for interesting alliances, as Justice Stephen Breyer authored the majority opinion, and Justices Clarence Thomas, Brett Kavanaugh, and Elena Kagan each authored concurrences. It was a lengthy dissent, in which Justice Neil Gorsuch joined together with Justice Sonia Sotomayor, that delivered the harshest words of the day.  The duo slammed the federal government as much for its brutality as for its alleged misuse of the state secrets privilege.

The case commenced during the Donald Trump administration but continued under President Joe Biden’s Department of Justice. Its central figure is Zayn al-Abidin Muhammad Husayn (better known as Abu Zubaydah), a Palestinian alleged to have been an al-Qaeda operative who was the first CIA prisoner to undergo extensive torture.

Zubaydah was alleged to have been involved in the planning of the 9/11 terror attacks, was captured in 2002 in Pakistan, and was subsequently moved to various CIA “black sites” around the globe where he was subjected to what the government — and subsequently the Supreme Court — called “enhanced interrogation techniques.”  Those techniques included waterboarding, stress positions, cramped confinement, and sleep deprivation. Zubaydah ultimately ended up at Guantánamo Bay in 2006; he remains there today.

Zubaydah’s counsel asked for a court order in conjunction with a Polish case to compel the U.S. government to turn over discovery materials about the involvement of two former CIA contractors—psychologists James Mitchell and Bruce Jessen—who worked on the CIA program. The information sought primarily related to whether the Polish detention site existed and where it was located. The federal government moved to quash the subpoena by arguing that the information Zubaydah wanted was protected by the “state secrets privilege.” That privilege allows the government to keep information secret that would compromise national security interests.

The U.S. Court of Appeals for the Ninth Circuit held that the state secrets privilege did not apply to information that was publicly known, but the SCOTUS reversed.  The high court said the federal government was permitted to keep the information about Zubaydah’s confinement hidden.

“Obviously the Court condones neither terrorism nor torture, but in this case we are required to decide only a narrow evidentiary dispute,” Justice Breyer wrote for the court’s majority.

In his 20-page opinion, Breyer explained that the specific information Zubaydah’s lawyers seek “will either confirm or deny that the CIA operated a detention site in Poland.” Because the existence of a CIA detention site in Poland is something that falls within the state secrets privilege, Breyer reasoned, the government may indeed invoke it to keep the information protected. Subjecting such information to public review could have serious adverse consequences for the intelligence community, Breyer said, because it could deter foreign countries from cooperating with U.S. intelligence agencies.

Breyer also weighed the potential danger to the U.S. government against any individual interest on Zubaydah’s behalf. Calling Zubaydah’s need for the information “not great,” Breyer explained that during oral arguments, Zubaydah’s counsel suggested his client “did not seek confirmation of the detention site’s Polish location so much as he sought information about what had happened there.”

Breyer was clear to emphasize the narrowness of the Court’s holding in the case.

“Of course, we need not and do not here decide whether a different discovery request filed by Zubaydah might avoid the problems that preclude further litigation regarding the requests at issue here,” the soon-to-be-retired justice penned.

Justices Gorsuch and Sotomayor — both of whom grilled the government on its position during oral arguments — saw things quite differently.  The pair of dissenters was utterly unwilling to accept the government’s argument that it needs to keep the long-sought information secret.

“There comes a point where we should not be ignorant as judges of what we know to be true as citizens,” Gorsuch wrote.

He then summarized the facts by unceremoniously dismissing the majority’s primary reasoning:

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.

Calling Zubaydah’s account of his detention and torture “incomplete,” Gorsuch pointed out that Polish prosecutors now seek to “unravel” Zubaydah’s story with an eye toward filing criminal charges. By reasoning that the government has already conceded that the interrogation techniques used on Zubaydah are no longer classified, Gorsuch argued that Zubaydah is entitled to discovery about “his interrogations, treatment, and conditions of confinement from December 2002 until September 2003.”

Turning to the state secrets privilege, Gorsuch called it “no blunderbuss” and said “courts may not flee from the field at its mere display.”

Referencing United States v. Nixon (1974), in which SCOTUS famously refused to defer to the state secrets privilege, Gorsuch cautioned against deferring without further analysis to the Executive branch’s wishes to withhold information. Gorsuch next went even farther back in American history by explaining that Chief Justice John Marshall once refused to defer to President Thomas Jefferson‘s request to withhold sensitive information during the trial of Aaron Burr.

Gorsuch then contrasted the American system of jurisprudence to the English system from which it grew. In the latter, a king was considered infallible and was entirely shielded from demands of legal proceedings. By drawing the contrast, Gorsuch underscored the judiciary’s responsibility to balance the withholding of relevant evidence with respect for other branches of government.

Gorsuch next raised the more serious concern of an executive branch “tempted to misuse claims of national security to shroud major abuses and even ordinary negligence from public view.” Referencing Korematsu v. United States (a case about the forced internment of Japanese American citizens during World War II) and United States v. Reynolds (a case in which the federal government invoked privilege to hide negligence about an Air Force plane crash that killed families of civilians), the justice warned against accepting claims involving the state secrets privilege “at face value.”

The dissenters also issued harsh words for the majority’s allegedly flawed analysis. Criticizing their fellow justices for “making no effort to grapple with the particulars of this case,” Gorsuch noted that “[e]ven the majority seems uncomfortable” with the government’s invocation of state secrets privilege.

Gorsuch said the majority erred by “effectively revers[ing] the burden of proof.” The majority, per Gorsuch, seemed to agree with the government only because it found nothing to contradict the government’s claims.  In this way, he wrote, “[a] bare expression of national security concern becomes reason enough to deny the ancient right to every man’s evidence.”

The dissent’s harshest words of all, though, were for the executive branch — its alleged misdeeds and its motives. Concluding the 30-page dissent, Gorsuch, joined by Sotomayor, wrote:

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.

The full opinion is below:

[image via Erin Schaff/POOL/AFP via Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos