The US Supreme Court heard oral arguments in US v. Zubaydah on Wednesday, a case involving a plaintiff’s right to discovery of privileged national security information.
The US sought a writ after the US Court of Appeals for the Ninth Circuit compelled the US to confirm or deny that it had a CIA facility in Poland. Zubaydah wanted the information to provide it to foreign investigators who would then prosecute Polish officials accused of participating in covert CIA activities relating to torture. During the trial, Zubaydah reasoned that widespread speculation suggested the CIA facility existed. But the CIA director cautioned that “there’s a critical difference between speculation . . . and formal confirmation by people with firsthand knowledge.” Still, the Ninth Circuit considered public speculation when determining whether the alleged facility’s existence was secret.
The crux of the US’ argument at the Supreme Court was that the Ninth Circuit made two fundamental errors in failing to afford the CIA director deference. First, in considering public speculation, and second, in allowing the information to be compelled. The US further argued that granting Zubaydah’s request would seriously harm national security.
During the oral argument, Justice Brett Kavanaugh questioned whether the privilege was constitutional or a common law privilege that could be altered by Congress. US counsel noted that the Supreme Court had not yet answered that question, but that the case of US v. Reynolds, wherein the privilege was first recognized, said that it was firmly rooted in the common law of evidence. Justice Clarence Thomas noted that Zubaydah seemed to be seeking more information to tie the torture to Poland. Zubaydah’s counsel tried to pivot in answering, but Justice Amy Coney Barret suggested that his answer may have conceded that the information would be privileged.
Chief Justice John Roberts further pushed the point, noting that even amid widespread speculation of the facility’s location, the US government had not confirmed it. Roberts said, “The United States Government says this is critically important because our friends, allies, intelligence sources around the world have to believe that we keep our word, and our word was this is secret.”
