United States v. Zubaydah
Issues
When applying the state secrets privilege, should a court defer to the government’s assessment of the national security risks involved or conduct an independent judicial review?
This case asks the Supreme Court to weigh national security concerns against the need for transparency and accountability when applying the state secrets privilege, a common-law privilege permitting classified information to be protected from discovery. Petitioner the United States argues that the utmost deference is owed to government officials in matters of national security. Respondent Zubaydah argues, however, that courts should review the evidence independently to separate state secrets from non-privileged information. The outcome of this case carries significant implications for judicial transparency, the separation of powers, and civil liberties.
Questions as Framed for the Court by the Parties
Whether the U.S. Court of Appeals for the Ninth Circuit erred when it rejected the United States’ assertion of the state secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. § 1782(a) against former Central Intelligence Agency contractors on matters concerning alleged clandestine CIA activities.
Following the terrorist attacks on September 11, 2001, the Central Intelligence Agency (“CIA”) sought to obtain intelligence on terrorist activities by developing a secret network of overseas black sites where detainees of the War on Terror were subjected to “enhanced interrogation techniques.” Husayn v. Mitchell at 1125–1127.
The authors would like to thank Professor Joseph Margulies for his guidance and insights into this case.
Additional Resources
- Adam Liptak, Supreme Court to Rule on Whether CIA Black Sites are State Secrets, New York Times (April 26, 2021)
- Rohini Kurrup, Supreme Court to Hear State Secrets Case Involving Guantanamo Detainee, Law Fare Blog (2021)