The Supreme Court is shielding the CIA over a widely reported issue
Is a secret still a secret when everybody knows about it? It is when it’s a state secret, according to the Supreme Court, which recently ruled that the American government can protect the CIA from having to disclose the location of a post-9/11 “black site” that has been widely reported on in the press for years.
The case, United States v. Abu Zubaydah, concerns the treatment of Zubaydah, a terrorist the United States captured in 2002 in Pakistan. Zubaydah was shipped around to several sites before his arrival in Guantánamo Bay including one in Poland where, he alleges, he was tortured by CIA contractors. Still detained at Gitmo, he has filed a criminal complaint in Polish courts for the injuries he says he suffered there — injuries from enhanced interrogation tactics that he and others (including the federal government) have said constitute torture.
Zubaydah, along with Polish prosecutors, filed a request to depose two of the CIA contractors involved with the case. The federal government moved to prevent this, calling the very location of the site a state secret. The Ninth Circuit disagreed, but on appeal the Supreme Court assented to the claim, with Justice Stephen Breyer writing the opinion for a six-justice majority that included most of the court’s conservative justices (Justice Elena Kagan also joined the opinion in part and dissented in part).
The essence of Breyer’s holding is as follows: even though the existence of the site has been known and even acknowledged for years, “the Government has provided sufficient support for its claim of harm to warrant application of the privilege.”
The state secrets doctrine is a rare exception to the wide-ranging rules of discovery in American courts. Created by the court in the 1953 case of United States v. Reynolds, the doctrine “permits the Government to prevent disclosure of information when that disclosure would harm national security interests.” It falls to the courts to decide whether such claims are within the legitimate scope of the exception. In doing so, courts have followed the custom of being “reluctant to intrude upon the authority of the Executive in military and national security affairs,” as one 1988 opinion on the subject put it.
Because any response to Zubaydah’s subpoenas would effectively confirm or deny the existence of a CIA facility in Poland, Breyer and the majority held that the information falls within the scope of the state secrets privilege.
Justice Neil Gorsuch, joined by Justice Sonia Sotomayor, dissented. In his usual elegant prose, Gorsuch writes that there “comes a point where we should not be ignorant as judges of what we know to be true as citizens.” The site was acknowledged in Senate reports and European court cases, not to mention books and documentaries that, Gorsuch notes, anyone can easily buy on Amazon.com.
It is difficult to deny that the information is out there. A web search for “Detention Site Blue” and “Poland” brings up a host of news articles from sources including The Economist and the Los Angeles Times that place the site in Stare Kiejkuty, Poland. It approaches willful blindness to say, years after these were published, that the information is a secret of any sort.
Gorsuch notes that in Reynolds and other cases the claim of state secrets has, in later declassifications, been shown to be a ruse designed to obscure government malfeasance. Does a sense of guilt over our post-9/11 dismissal of civil liberties concerns colour the government’s motives here? Gorsuch suggests it might.
“Really,” he writes, “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.”