Abstract
In March of 2022, the Supreme Court addressed the “state secrets privilege,” which the government has repeatedly invoked in the post-9/11 era. This privilege is analogous to the common law attorney/client privilege, but courts have recently grounded it in presidential authority under Article II of the Constitution to prevent the disclosure of information dangerous to national security. In United States v. Husayn, a divided Court upheld the state secrets privilege to prevent the official disclosure of a fact that was no longer in any sense a secret. The majority and the dissenters disagreed on whether the Court struck the right balance between national security and the need for transparency to remedy past governmental wrongdoing.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
18 U.S.C. § 2340A.
- 2.
Memorandum from Jay S. Bybee, OLC, to John Rizzo, CIA, 1 August 2002. Waterboarding involves pouring water through a cloth covering the mouth and nose of an immobilized detainee; depending on the length of the pour, the technique produces the sensation or the reality of drowning.
- 3.
Dick Marty, “Secret Detentions and Illegal Transfers of Detainees Involving Council of Europe Member States: Second Report” (Council of Europe, 7 June 2007), especially chapter 3.
- 4.
SSCI, “Report on Central Intelligence Agency’s Detention and Interrogation Program,” pages 22, 67, 410, 430.
- 5.
Press Conference by President Obama, 1 August 2014; Greg Miller, “Justice Closes CIA Probe Without Charges,” The Washington Post, 31 August 2012.
- 6.
Husayn v. Poland, App. No. 7511/13, para. 498–514, ECHR, (2014). In 2018, Husayn also won a judgment at the ECHR in Abu Zubaydah v. Lithuania, App. No. 46454/11, ECHR (2018).
- 7.
28 U.S.C. §1782.
- 8.
James E. Mitchell and Bill Harlow, Enhanced Interrogation (Crown Forum, 2016); Salim v. Mitchell, 268 F. Supp. 3d 1132 (E.D. Wash. 2017) at 1140–1143.
- 9.
938 F.3d 1121 (9th Cir. 2019) at 1134.
- 10.
92 U.S. 105 (1875) at 106.
- 11.
U.S. v. Reynolds 345 U.S. 1 (1953) at 6–7.
- 12.
Ibid. at 8, 10–11.
- 13.
507 F.3d 1190 (9th Cir. 2007).
- 14.
El-Masri v. U.S., 479 F.3d 296 (4th Cir. 2007) at 306, 303–304.
- 15.
579 F.3d 943 (9th Cir. 2010) at 1084, 1087.
- 16.
Yassir Fazaga and his co-plaintiffs filed a class action lawsuit alleging that the FBI, following the 9/11 attacks, had subjected Muslim communities in California to illegal surveillance under the Foreign Intelligence Surveillance Act (FISA). The Court reasoned that the government could properly invoke the state secrets privilege even if Fazaga was “an aggrieved person” under FISA, a status that statutorily enabled the plaintiff to test the legality of the surveillance. The privilege, the Court ruled, “may sometimes preclude even in camera, ex parte review [by a judge] of the relevant evidence” (Fazaga decision page 13). Of course, without such review, it would be impossible for a judge to determine whether the surveillance was lawful or not.
- 17.
Husayn decision at 8, 10–11, 14–15, and 19.
- 18.
Patryk Wasilewski and Martin M. Sobczyk, “Former Polish President Allowed CIA to Operate Secret Detention Center,” The Wall Street Journal, 10 December 2014.
- 19.
Husayn decision at 17. However, Breyer did suggest that “we need not and do not here decide whether a different discovery request filed by Zubaydah might avoid the problems that preclude further litigation regarding the requests at issue here.”
- 20.
Thomas concurrence pages 1–3, 8, 14–17.
- 21.
Kavanaugh concurrence at 1–2.
- 22.
Kagan concurrence at 1–2.
- 23.
Gorsuch dissent at 22–23, 27, 25–26.
- 24.
Ibid. at 8–9, 11, 15–16, and 30.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2023 The Author(s), under exclusive license to Springer Nature Switzerland AG
About this chapter
Cite this chapter
Pohlman, H.L. (2023). United States v. Husayn, aka [Abu] Zubaydah on State Secrets in the Post-9/11 Era. In: Marietta, M. (eds) SCOTUS 2022. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-18468-0_14
Download citation
DOI: https://doi.org/10.1007/978-3-031-18468-0_14
Published:
Publisher Name: Palgrave Macmillan, Cham
Print ISBN: 978-3-031-18467-3
Online ISBN: 978-3-031-18468-0
eBook Packages: Political Science and International StudiesPolitical Science and International Studies (R0)