Author: HP McLovincraft

The US Supreme Court ruled recently on the government’s use of the state secrets doctrine in an opinion that will make it easier for intelligence agencies to evade accountability in future individual rights cases. In US v. Zubaydah, government torture policy and state secrets converge. A torture victim requested information related to his treatment at a CIA “black site,” and the government blocked that request, citing national security interests. Seven members of the Court joined parts of an opinion siding with the government, with only Justices Sotomayor and Gorsuch dissenting. The case has implications for other torture-related cases and for government accountability more broadly as it expands state secrecy powers based on a doctrine that was already overbroad, and suspect in its origins.

The Zubaydah case is procedurally unusual. Abu Zubaydah is currently detained at Guantanamo, but the history of his confinement and treatment at numerous sites over the past two decades is well known. The government has admitted to waterboarding him and subjecting him to other forms of torture, and the 2014 Senate Report on Torture refers specifically to Zubaydah at numerous points. Moreover, former President Obama conceded that Zubaydah was tortured. In the course of seeking a tribunal that would hear his claims, Zubaydah asked the Polish government to investigate criminally the interrogations that took place at a CIA black site in Poland, Stare Kiejkuty. Since much of the supporting evidence was located in the United States, Zubaydah had to petition a US District Court for an order compelling its production. Federal law allows for such a petition, but when it was filed, the US government objected, citing the state secrets doctrine. The case worked its way up to the Supreme Court and the Court ruled for the first time in years on the scope and application of the doctrine.

The state secrets privilege (SSP) is an evidentiary doctrine originating in the 1953 case of US v. Reynolds, a Cold War-era dispute involving the crash of a military aircraft. In Reynolds, the victims’ families sought information about the crash, specifically survivors’ statements and an accident report. The government objected, claiming that revealing this information would endanger national security. The Supreme Court agreed, and their ruling gave birth to the SSP, which expanded in use over the ensuing seven decades. In short, the ruling says that the government is entitled to withhold information, in the course of litigation, where there is a “danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.” But the potential for such a broadly stated secrecy power to be abused is self-evident and was so even in the Reynolds case itself. As Louis Fisher has shown, the information withheld in Reynolds surfaced on the Internet in the 1990s and was quite mundane, containing not military secrets but evidence of government negligence instead.

Courts have applied the SSP to thwart discovery of evidence in a case where a twelve-year-old boy came under CIA scrutiny for writing letters overseas, where government workers sought information about deadly chemicals to which they had been exposed (so they could get treatment for their illness), and where the victim in an earlier torture case sought relief. But some questions had not been settled. Could the very subject matter of a case be a state secret, so that no discovery requests could even be made? Could trial courts order production of alleged secret evidence in chambers so a judge could view it before ruling on the SSP? And most centrally relevant to Zubaydah’s case, could the SSP apply to information already in the public domain (in other words, to non-secrets)?

It is this last question – whether the SSP applies to already-known information – that the Court took on in its recent opinion. The existence of Stare Kiejkuty is well-known, described in various sources. And the witnesses whose testimony Zubaydah sought to procure had already testified in similar proceedings. James Mitchell and Bruce Jessen were government contractors – psychologists specializing in family therapy who developed coercive interrogation protocols and then supervised their use by the CIA on-site. One of them even wrote a book about his exploits, and both had already testified about their interrogation work in other cases, such as the trial of Khalid Shaikh Mohammed.

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