The US Supreme Court ruled Thursday in a 7-2 decision that information related to torture at CIA “black sites” is protected under the state secrets privilege, which allows the government to bar the release of information when it would endanger national security.
Between December 2003 and September 2004, respondent Zayn al-Abidin Muhammad Husayn (Zubaydah), a Pakistani national, was detained at a CIA “black site” in Poland on suspicion of possible ties to Al Qaeda. CIA contractors subjected him to an “enhanced interrogation” program that included water boarding, sleep deprivation, and cramped confinement. In 2010 Zubaydah, who is now detained at Guantanamo Bay, filed a criminal complaint in Poland seeking to hold accountable any Poles who had contributed to his torture.
To aid in this investigation, Zubaydah submitted a discovery request in federal court to subpoena the two CIA contractors who oversaw the interrogation. In response, the government claimed that complying with Zubaydah’s request would force them to confirm the location of the site. The government claimed that this was an admission that would undermine national security by decreasing international confidence in the CIA’s ability to keep information confidential.
Adopting a broad standard of deference, the majority ruled against the request. In an opinion written by Justice Breyer, the court held that the government had “provided a reasonable explanation of why [the contractors’] confirmation or denial of the information Zubaydah seeks could significantly harm national security interests.”
Justice Gorsuch, joined by Justice Sotomayor, issued a dissent in which he criticized the over-retention of privileged government information. He instead argued for a higher standard of scrutiny for such matters. Moreover, the dissent noted that the location of the CIA facility in question is publicly known with or without the petitioner’s confirmation. Dismissing the request on these grounds thus denies Zubaydah information on the other aspects of his discovery request, which, Gorsuch argued, was more central to his case anyways.
The court’s decision is likely to make easier for the government to withhold information under the state secrets privilege.
