When the U.S. Supreme Court decided to hear a pair of cases that touch on the state secrets privilege this term — United States v. Zubaydah and Federal Bureau of Investigation v. Fazaga — the likely outcome was largely written on the wall. Though the lawsuits asked different legal questions (more on that below), in each one a panel of the U.S. Court of Appeals for the Ninth Circuit had ruled against the government, and in each one the full Ninth Circuit declined to rehear the case over the fierce dissents of more than 10 judges.
The Supreme Court’s decision to review the cases at all hinted that the justices intended to flip rulings that — at least according to the federal government — cut too deeply into the national security prerogatives of the executive branch. This month, the Court followed through, reversing the Ninth Circuit in both cases.
Zubaydah had asked whether the government could rely on the state secrets privilege to block an effort by Abu Zubaydah, a Guantanamo detainee, to obtain discovery about his treatment at a CIA black site in Poland. As the Ninth Circuit had noted below, and as Justices Neil Gorsuch and Sonia Sotomayor underlined in a searing dissent, that Zubaydah was held in Poland isn’t especially secret. (A friend-of-the-court brief filed by several First Amendment organizations canvasses the public record in detail.)
Still, in an opinion by Justice Stephen Breyer, a fractured majority of the Court credited the government’s claim that acknowledging that fact could harm national security, finding that official confirmation could undermine the CIA’s ability to promise foreign partners secrecy in the future. Some concurring justices would have preferred even less scrutiny of the government’s showing of national security need before dispensing with Zubaydah’s requests.
Divisions in the reasoning aside, it’s safe to say the decision marks a troubling extension of the government’s secrecy powers that, as Justice Gorsuch put it, “may shield the government from some further modest measure of embarrassment” but will not in practice “safeguard any secret.”
The Fazaga decision is, as Adam Liptak put it for The New York Times, “more modest and technical.” That case has its roots in FBI monitoring of a Southern California mosque; the government had attempted to have pieces of the case thrown out on the grounds that introducing the evidence necessary for its defense would risk disclosure of state secrets. The Ninth Circuit had been unpersuaded, concluding that the Foreign Intelligence Surveillance Act provides procedures for reviewing allegedly unlawful surveillance that displace the state secrets privilege.
But all nine justices disagreed, finding that FISA’s procedures and the privilege simply speak to different questions. The Court didn’t, however, touch on any of the other issues the parties had pressed before it — including whether the privilege applies at all to this particular case, and if so whether it would justify tossing the plaintiffs’ suit. Though roads remain open for the action to proceed, the decision makes it at least a tick more difficult to challenge national security surveillance in court. And together, the two decisions reflect a Court that remains receptive (some of us would say to a fault) to the government’s claimed need for national security secrecy.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.