United States v. Zubdayah Destroys the Checks and Balances Myth

United States v. Zubdayah is a case that was heard at the Supreme Court in October of 2021. The case coming from the 9th Circut Court is between the petitioner the United States Government, represented by Solicitor General Brian Fletcher, and respondent Zayn-al Abidin Muhammad Husayn or “Zubdayah”, represented by Attorney David Klein. Zubaydah is a person who the CIA captured due to the agency erroneously identifying him as a member of Al Qaeda [1]. He was taken to a CIA black site in Poland where he was tortured by the CIA, revealed in declassified documents from the Agency that mentioned the torture, but not where it occurred. Zubaydah filed criminal charges against the Polish officials who were complicit in his detention at the black site, which revealed that the site he was taken to was in Poland. After the investigation did not lead to any criminal charges, Zubaydah applied to the European Human Rights court claiming that the nation had breached its duty to “conduct a proper investigation” into the abuse that Zubaydah had faced while detained. This led to the investigation being reopened by the Polish government, requesting evidence from the United States government, which was denied. To assist in the gaining of the evidence, Zubaydah’s lawyers applied for discovery in the Eastern District of Washington. The U.S. government commented that the application should be denied due to the “state secrets privilege”. The District Court ruled in favor of the government, but upon appeal to the 9th Circut Court, the Court rejected the government’s state secrets assertion and ruled in favor of Zubaydah.

In applying for certiorari, the U.S. government continued to argue that the information fell under the state secrets privilege, as the District Court ruled when the case was before them. This had placed the case as one that will add to the growing number of cases that shape when and how the state secrets privilege should apply to information considered classified and “sensitive to the national security of the nation”. In their amicus brief to the Supreme Court on this case, the American Civil Liberties Union (ACLU) identifies that this case is “the intersection between the state secrets privilege and the Central Intelligence Agency’s torture of individuals in the wake of the September 11, 2001, terrorist attacks” [2]. This relevancy to a matter of much-debated national law shows a conflict between two State interests, the freedom of information and accountability of government officials versus the importance of national security, which has defined much of American foreign and domestic policy since the 9/11 terrorist attack shook the nation.

When considering these factors it becomes quite clear how such a case would reach the Supreme Court. This particular case considers the facts of the case and a basic understanding of U.S. politics in the Post 9/11 era centered around core freedoms and the relationship between the State and the people. Despite a lack of media coverage on this particular case, the state secrets privilege, accountability of intelligence agencies, and the balance between freedoms and national security have been some of the most consistently important and fiercely debated topics on civil liberties since the beginning of the “War on Terror”. It has seen much “percolation” in cases that are on these very conflicts such as Intel Corp. v Advanced Micro Devices, Inc. which is where the term “state secrets privilege” actually came from [3]. The case set the ground upon which this case builds, a legal principle that restricts the freedom of information and accountability of government officials if said information could be constrained as a “threat to national security”.

In Oral Arguments, Petitioner, the United States government, represented by the acting Solicitor General Brian Fletcher, began their argument by saying that the government’s “covert intelligence partnerships depend on our partner's trust that we will keep those relationships confidential.” [4]. Fletcher added that he believes the particulars of the case bring great harm to the trust between U.S. allies and national security. He uses testimony from the Director of the CIA from when the case was heard at the 9th Circut Court to characterize the issue as the difference between public speculation and formal confirmation by those with first-hand knowledge of the incident. The argument then became that the Court erred in not deferring to the CIA Director’s expertise in whether the compulsion of two contractors to testify to the claims made by the respondent affected national security, asserting it would as a breach of trust with allied nations. In deference to questions, Justice Clarence Thomas asked whether the contractors had testified before and why they could not testify at the Supreme Court, Fletcher answering yes and that the context of the testimony here would violate the previously mentioned trust with foreign allies. The Justice then asks Fletcher about the argument of the “Utmost Deference Standard” and what circumstances the U.S. government could fail it. Fletcher responds by saying that the circumstances where they should be highly unusual and the Court should be “reluctant” to fail them. Justice Elena Kagan then adds to Thomas’s line of questioning by citing “United States v. Reynolds”, which recognized the state secrets privilege and created a standard of reasonable cause to invoke, asking if the deference is supposed to belong to the Court, not Intelligence agencies [5]. Fletcher responded that the standard was not to immediately defer to the Executive branch but to say the Court should go to meet the standard [4]. Justice Sonia Sotomayor asked for clarification on whether Fletcher is asking for the government to defer whether a security threat would exist as a result of disclosure or if the Court is to defer to his judgment on whether a national security risk exists. He responded that the Court’s deference works in his favor as the safeguards they employed would help protect national security, but were not properly applied here.

Respondent Zubaydah’s, represented by David Klein, argument began with a focus on the disclosure of the actual location of the black site is irrelevant, as Polish prosecutors requesting that information were already aware of this information and were using it in their investigation. The reason for the request was for details about his detainment from his health to whether he was tortured. Klein furthered that these topics were declassified already and that the government had already allowed testimony about them publicly and that discovery was not necessary for determining whether the classified and declassified material could be separated, advocating the discovery be left to the District Court. If the District Court chooses to do discovery for such they would be able to employ the same tools to protect state secrets and the government would be able to be in attendance and object. Upon opening up to questions Justice Thomas immediately asked that if most of the information was already disclosed, why would further testimony be needed. Klein responded that the information disclosed was not limited. Thomas retorts by asking how that does not conflict with his argument saying they did not need the location but is looking for information now that would tie it to Poland. Klein responded that the particular location was already found in the Polish investigation and those details are needed under Polish law. Justice Amy Coney Barret asked for clarification on whether Klein’s argument amounted to stating the details were not a secret already and that they needed the contractor’s testimony to establish the torture happened, trying to see if the statements conflicted, which Klein denied, saying the Black Site’s existence was already established, but that the location is not needed. Justice Barret’s further questioning centered that the Respondent was looking for the information to show the torture did happen when he was in Poland and that torture was not a state secret. The gain of which Klein says “is placing some of the torture in a particular timeframe.” [4]. Chief Justice Roberts continued on that line of questioning on whether the respondent needed acknowledgment of the torture from the U.S. government, a fact he says they have not acknowledged, which Klein denies is what was being sought.

The Case was decided in favor of the Petitioner, the United States government, on March 3rd, 2022 in a 7-2 decision [6]. In the majority opinion authored by Justice Breyer on behalf of the Chief Justice and four of the other justices in the majority, the Ninth Circut Court erred in its holding that the state's secret privilege did not apply to the information sought in discovery. The application for discovery was denied on this basis. Justices Gorsuch and Sotomayer were the only two dissenters with Justice Gorsuch authoring the dissenting opinion saying that this case’s details and the CIA’s use of torture and black sites were already declassified and widely published in different media sources and that the decision would not safeguard any secrets, but save the U.S. government from “embarrassment”. The decision was a blow to freedom of information and government accountability as what is affirmed by the majority opinion by Justice Breyer expands the scope of the state secret privilege to information that is publicly available, but is not officially disseminated by the U.S. government. In a concurring opinion by Justice Kavanaugh, he clarified the process for invoking the privilege that included great deference to the executive branch, in this specific case that being the CIA Director, as argued by Solicitor General Brian Fletcher in oral arguments [4].

Such a decision is not a surprise, however, as the statistical data on cases involving the government as a player in the case would suggest that the Solicitor General would likely win their cases the majority of the time due to the oversized influence and amount of wins they have in the Court [7]. While the amount of Amici briefs filed on behalf of the Respondent would suggest otherwise with an overwhelming amount in favor from many repeat players in the Court that tend to also have outsized influence in the Court and the decisions they have made [8]. One such player is the Council on American-Islamic Relations, which has filed briefs for similar cases involving many of the same facts and legal issues in the case [9]. These and all repeat players have an overwhelming influence on what the Justices ultimately decide, no matter what the Court composition is [10]. While the Solicitor General is considered the “quintessential repeat player”, they are overwhelmingly outnumbered in support of them in the stage where it matters most in interest groups [7]. Along with the marginal hostility seen in the oral arguments towards the petitioner from several justices and the precedent brought up from “United States v. Reynolds”, the possibility of the Court ruling in favor of the Respondent seemed to be extremely likely before the decision was made, though ultimately the case would end up being further evidence of the government’s outsized influence [5].

The reason for this outsized influence can be traced back to the theory of judicial behavior of “personal motivations for judicial choice” which likely explains the outcome best. This is because the several factors connected to the personal incentives and motivations of judges are laid out as a greater predictor and reason for judicial behavior than other explanations those factors include job satisfaction, external satisfaction, leisure, salary/income, promotion, all of which are universally accepted motivations for behavior in most other career paths but are often ignored when it comes to the analysis of the courts [11]. While it is true the idea of promotion as motivation is not present at the Supreme Court level, as the only potential promotion within the field is to Chief Justice, and seeking the position is rare among justices, the other motivations do apply [11]. Looking at the empirical data on the subject we can see justices not dissenting on certain cases if they would incur additional cost to their resources and that the legislature will use judicial budgets as a signaling device of satisfaction of performance to judges that will often influence cases with the government as a player [11]. In this case, it would be clear that a favorable decision for the government would aid in the justices' desire for external satisfaction, possibly to avoid pressure from the other branches, especially the Executive branch who already has a lot of influence due to its power to appoint justices in the first place which could also have been an example of promotion as a retroactive incentive for the decision in this case.

Taking these things into account brings us to a problematic conclusion about the use of the Court on issues that involve limiting the government’s power as what this case and the other previously mentioned cases show is that due to the incentives that drive judicial behavior we see outcomes that are contrary to point of litigating as citizens on these issues. As we can see since the inception of the state secret privilege following cases have only broadened its use, this case included. This is because the “separation of powers” is no real separation when it comes to the limiting of state institution’s power and the democratic republic state’s ability to function is based on the cooperation of its “coequal” branches [12]. By asking the institution we want to limit to limit itself we are erring, even if on the surface the different branches seem distinct and different. Doing so will likely only lead to the case being decided in a way that creates further justification for the very issue that we are trying to limit the state on.

Citations:

1. Herman, A., & Cuchanski, A. (2021, October 1). United States v. Zubaydah. LII / Legal Information Institute. https://www.law.cornell.edu/supct/cert/20-827

2. Cole, D., Ladin, D., Watt, S., Shamsi, H., Gorski, A., Lustberg, L., Connell, J., & Pradhan, A. (n.d.). US v. Husayn ACLU et al amici brief. American Civil Liberties Union. https://www.aclu.org/legal-document/us-v-husayn-aclu-et-al-amici-brief

3. Legal Information Institute. (n.d.). Intel Corp. v. Advanced Micro Devices, Inc. https://www.law.cornell.edu/supct/html/02-572.ZO.html

4. CSPAN. (2021, October 6). Supreme Court justices hear oral arguments in United States v. Zubaydah [Video]. https://www.c-span.org/video/?514690-1/supreme-court-justices-hear-oral-arguments-unitedstates-v-zubaydah

5. Legal Information Institute. (n.d.). United States v. Reynolds et al. https://www.law.cornell.edu/supremecourt/text/345/1#

6. Oyez. (n.d.). United States v. Zubaydah. https://www.oyez.org/cases/2021/20-827

7. Howard, R. M., & Randazzo, K. A. (2017). Routledge handbook of judicial behavior. Routledge. https://blackboard.albany.edu/bbcswebdav/pid-6168825-dt-content-rid-99048613_1/courses/2 219-RPOS-335-9674/RoutledgeHandbookofJudicialBehavior.pdf

8. Justia Law. (n.d.). United States v. Zubaydah. https://supreme.justia.com/cases/federal/us/2021/20-827/

9. Marsi, L., & Friend, J. (2021). Brief of Council on American-Islamic relations as amici curiae in support of respondents. Council on American-Islamic Relations. https://www.supremecourt.gov/DocketPDF/20/20-827/187931/20210819153518286_Husayn% 20Brief%20Final_archiveCorrectedfn1.pdf

10. Galanter, M. (1974). Why the "Haves" Come out ahead: Speculations on the limits of legal change. Law & Society Review, 9(1), 95. https://doi.org/10.2307/3053023

11. Epstein, L., & Knight, J. (2013). Reconsidering judicial preferences. Annual Review of Political Science, 16(1), 11-31. https://doi.org/10.1146/annurev-polisci-032211-214229

12. Hoppe, H. (2011). Democracy The god that failed: The economics and politics of monarchy, democracy, and natural order. Transaction Publishers