Lauren Scarff is a senior in the School of Foreign Service majoring in International Politics. She is currently the Editor-in-Chief for the Georgetown University Undergraduate Law Review.
On October 6th, 2021, the Supreme Court heard United States v. Zubaydah, a peculiar case that calls into question, among other pertinent national security law issues, the state secrets doctrine. Abu Zubaydah is a Palestinian man who was captured in Pakistan in 2002 under suspicion of being a top al-Qaeda leader. Although the CIA concluded in 2006 that Zubaydah is not a member of al-Qaeda, Zubaydah has remained in U.S. custody, primarily in Guantanamo Bay, since 2002.[1] This case, however, centers not on Pakistan, Cuba, or Guantanamo, but Poland. The European Court of Human Rights determined that, from December 2002 to September 2003, Zubaydah was held at a CIA black site located in Poland where he was subjected to waterboarding 83 times, locked in a small box for hundreds of hours, denied sleep, and forced to remain in stress positions. Polish officials are now investigating whether any Polish nationals were complicit in Zubaydah’s torture and, if so, to what extent. Pursuant to their investigation, Abu Zubaydah, his lawyers, and Polish prosecutors want to subpoena CIA contractors James Mitchell and John Jessen, but the federal government has blocked the subpoena by invoking the state secrets doctrine.[2][3]
The state secrets doctrine was first established in United States v. Reynolds, and it holds that government information should remain secret and not be revealed during litigation, even if the claimant has a right to that 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.”[4] Given Zubaydah’s case hinges on information about top secret CIA black sites and torture methods, at first glance, it appears that the precedent set by Reynolds would clearly apply here. Zubaydah’s case is peculiar, though, because the information he seeks from the government is not actually secret. In 2014, the Senate Intelligence Committee released an unclassified executive summary of a report on the CIA’s use of torture. In this unclassified executive summary, Zubaydah’s name is mentioned 1,343 times, and the summary details Zubaydah’s torture.[5] The question is thus raised, does invoking the state secrets doctrine require a secret?
Part of the government’s argument hinges on the fact that the CIA has never confirmed or denied much of the information Zubaydah seeks. Therefore, the government argues that, without express government disclosure, information that appears to be public knowledge can still qualify as a state secret. In particular, the government argues that testimony from Mitchell and Jessen could jeopardize “clandestine liaison relationships,” likely referring to relationships with those foreign nationals aware of or operating within the Polish black site, which in turn could threaten other clandestine relationships and security services. The government claims that exposing these relationships could pose a threat to national security. In the government’s petition for a writ of certiorari, it chastised the Ninth Circuit opinion, which ruled in Zubaydah’s favor, for not showing proper deference to the government’s assessment of national security risks and what is or is not considered public information.[6] The government’s argument is bolstered by the fact that it seems that some of the information Zubaydah may want has not yet been made public. For instance, the exact location of the Polish black site and if any Polish nationals were operating in that black site.
However, Zubaydah’s lawyers claim that Polish prosecutors do not seek specific information on the Polish black site that has not already been made public. When asked what information the Polish prosecutors seek, Zubaydah’s lawyer replied “What he [the Polish prosecutor] does need to know is what happened inside Abu Zubaydah’s cell between December 2002 and September 2003. So I want to ask simple questions like, how was Abu Zubaydah fed? What was his medical condition? What was his cell like? And, yes, was he tortured?”[7] In essence, Zubaydah, his lawyers, and the Polish prosecutors want further detail on already public information, but supposedly do not seek classified information that has not already been made public in some manner.
The government’s insistence in this case on invoking the state secrets doctrine to protect already public information seems to signal an abuse in the government’s use of the state secrets doctrine. The Court has historically granted great deference to the government when it claims that certain information must be protected under the state secrets doctrine.[8] In fact, the mention of information potentially being a threat to national security effectively muzzles anyone seeking that information. In Zubaydah’s case, the government raises valid concerns about the potential for actual classified information to be released should the state secrets doctrine not be enforced, but if Zubaydah genuinely seeks only further details on already public information, the government’s claim to the privilege of the state secrets doctrine seems absurd. The relentless efforts from the government to protect already public information begs the question, what other information has the government suppressed in the name of state secrets and national security that perhaps should not fall under those privileges?
The Court may not issue an opinion on the government’s use of the state secrets doctrine and whether the doctrine requires an actual secret, as Justices Gorsuch, Sotomayor, and Breyer have asked if Zubaydah himself could testify and provide the information the Polish prosecutors seek.[9] This move would be unprecedented, as Guantanamo detainees’ communications are highly restricted due to security concerns. However, it could provide a compromise that does not require the Court to determine if the government can quash the subpoenas to Mitchell and Jessen in the name of the state secrets doctrine. If Zubaydah testifies to his own torture, the alleged state secrets that would be contained in Mitchell and Jessen’s testimony would not be made public, and the Polish prosecutors could obtain the information they seek. On October 15th, 2021, the government issued a letter to the Supreme Court noting that the Biden administration would allow Zubaydah to provide limited testimony to Polish prosecutors.[10] Zubaydah awaits the court’s decision to see if his testimony will, in fact, be the solution to this complex state secrets issue.
[1] Rohini Kurup, Supreme Court to Hear State Secrets Case Involving Guantanamo Detainee, Lawfare (June 10, 2021), https://www.lawfareblog.com/supreme-court-hear-state-secrets-case-involving-guantanamo-detainee.
[2] Robert Barnes, Supreme Court considers whether information widely known can be state secret, Washington Post (Oct. 6, 2021), https://www.washingtonpost.com/politics/courts_law/supreme-court-guantanamo-zubaydah/2021/10/05/9546913e-261d-11ec-8d53-67cfb452aa60_story.html.
[3] 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.
[4] United States v. Reynolds, 345 U.S. 1 (1953).
[5] Millhiser, supra note 3.
[6] Kurup, supra note 1.
[7] Barnes, supra note 2.
[8] Kurup, supra note 1.
[9] Amy Howe, Argument over state secrets and CIA black sites takes unexpected turn in final few minutes, SCOTUSblog (Oct. 6, 2021), https://www.scotusblog.com/2021/10/argument-over-state-secrets-and-cia-black-sites-takes-unexpected-turn-in-final-few-minutes/.
[10] Ariane de Vogue, Biden admin tells Supreme Court that Guantanamo detainee can provide limited testimony, CNN (Oct. 17, 2021), https://www.cnn.com/2021/10/17/politics/biden-supreme-court-abu-zubaydah-guantanamo/index.html.
