United States v. Zubaydah
United States v. Zubaydah, 595 U.S. ___ (2022), involved the Supreme Court examining the state secrets privilege. Abu Zubaydah, who was accused of being affiliated with Al Qaeda, endured torture carried out by two Central Intelligence Agency (CIA) contractors at a secret black site located in Poland. In 2017, he attempted to obtain their testimony, but the federal government prevented this by invoking the classification of information related to the black site. The Supreme Court ultimately ruled 7–2 against Zubaydah.
Background
Captured in Pakistan in 2002, Abu Zubaydah was alleged to be a member of Al Qaeda. He was detained at several CIA-controlled black sites before being moved to Guantanamo Bay detention camp by 2003. Although the details of these facilities were classified, public awareness of a black site in Poland arose after Zubaydah and his legal team requested a Polish inquiry into his treatment there in 2010. The investigation verified that he underwent techniques such as waterboarding and other forms of torture administered under the direction of two CIA contractors.
In 2017, Zubaydah sought to compel testimony from these contractors through federal courts concerning his detention. The CIA resisted, maintaining that all information pertaining to the black site remained classified, regardless of whether revealing it would disclose the location. Zubaydah contended that the general location in Poland was already publicly known. He prevailed at both the district court level and on appeal at the United States Court of Appeals for the Ninth Circuit, despite opposition from Judge Ronald M. Gould. A petition for a rehearing en banc was denied, with dissent expressed by Judge Daniel Bress and 11 other judges.
Supreme Court
The Supreme Court granted certiorari on April 26, 2021, and heard oral arguments on October 6, 2021. On March 3, 2022, the Court overturned the Ninth Circuit’s decision by a 7–2 vote. Justice Stephen Breyer authored the majority opinion, fully supported by Chief Justice John Roberts and partly by Justices Brett Kavanaugh and Amy Coney Barrett. The opinion acknowledged that while some aspects of the CIA black site in Poland were already public knowledge, disclosing the specific information requested by Zubaydah could confirm or deny the existence of such facilities, thereby endangering national security.
Justice Clarence Thomas, joined by Justice Samuel Alito, concurred but argued that Zubaydah did not need access to the requested contractor testimony for his legal claims. Justice Elena Kagan also wrote a concurring opinion suggesting that the case be sent back to district court to assess which information might be released without jeopardizing state secrets.
In dissent, Justice Neil Gorsuch, joined by Justice Sonia Sotomayor, maintained that Zubaydah’s confinement at the Polish black site was already publicly acknowledged and criticized excessive government classification practices. He agreed with Justice Kagan’s view that remanding to district court was appropriate to distinguish between disclosable information and protected state secrets.