The Supreme Court sided with the Biden administration last week, upholding the longstanding state-secrets evidentiary privilege that prevents the disclosure of information deemed injurious to national security.
In both cases, the high court reversed decisions of the often-overturned U.S. Court of Appeals for the 9th Circuit.
Specifically, the Supreme Court blocked testimony by U.S. government contractors about the alleged torture overseas of a suspected Muslim terrorist, and ordered lower courts to reconsider a case in which Muslims claimed the FBI unfairly targeted them in a counterterrorism investigation.
In U.S. v. Zubaydah, court file 20-827, an accused terrorist’s lawyer asked the Supreme Court to allow his client to depose two former Central Intelligence Agency contractors about waterboarding at CIA black sites in connection with a Polish criminal investigation into that nation’s involvement in the CIA’s clandestine detention and interrogation program. Oral arguments took place on Oct. 6, 2021.
The government claims Zayn al-Abidin Muhammad Husayn, also known by his nom de guerre, Abu Zubaydah, was “an associate and longtime terrorist ally of Osama bin Laden.”
Reportedly the first high-value Muslim terrorist captured after the Sept. 11, 2001, attacks, Zubaydah is being held at the U.S. detention center at Guantanamo Bay Naval Base in Cuba. The government won’t make the detainee available to provide evidence about his alleged torture by the CIA to assist the Polish investigation, claiming that doing so could undermine U.S. national security.
The 9th Circuit believed the site’s location had already been made public and that the state secrets privilege didn’t preclude disclosure of information that was no longer secret. But the government argued the privilege should apply because Zubaydah’s discovery request related to the legal proceeding in Poland could require the former CIA contractors “to confirm the location of the detention site and that confirmation would itself significantly harm national security interests,” Breyer wrote.
“In our view, the Government has provided sufficient support for its claim of harm to warrant application of the privilege,” the justice wrote. “We reverse the Ninth Circuit’s contrary holding.”
Justice Neil Gorsuch filed a dissenting opinion, which Justice Sonia Sotomayor joined.
“There comes a point where we should not be ignorant as judges of what we know to be true as citizens. This case takes us well past that point. Zubaydah seeks information about his torture at the hands of the CIA. The events in question took place two decades ago,” Gorsuch wrote.
“They have long been declassified. Official reports have been published, books written, and movies made about them. Still, the government seeks to have this suit dismissed on the ground it implicates a state secret—and today the Court acquiesces in that request. Ending this suit may shield the government from some further modest measure of embarrassment. But respectfully, we should not pretend it will safeguard any secret.”
In the other case, FBI v. Fazaga, court file 20–828, the Biden administration told the Supreme Court during oral arguments Nov. 8, 2021, that the 9th Circuit was wrong to revive a stalled lawsuit against the FBI that was based on a claim that the agency discriminated against Muslims by targeting them in a counterterrorism investigation.
Former imam Yassir Fazaga and two other Muslim men from California sued the FBI and several individual agents, claiming the agency targeted Muslims for surveillance because of their religion as part of a program called Operation Flex. In the investigation, an FBI informant posed as a Muslim convert and recorded conversations with Muslims.
At the request of the FBI, the federal district court threw out the Muslims’ First Amendment-based free exercise and religious discrimination claims, citing the state-secrets evidentiary privilege, a doctrine recognized in U.S. v. Reynolds (1953) that lets the government withhold sensitive evidence in a case if disclosing it would imperil national security.
The 9th Circuit reversed, holding that the Foreign Intelligence Surveillance Act (FISA) of 1978 establishes procedures—such as allowing the court to conduct a closed-door review of the lawfulness of the surveillance—for people to try to suppress FISA evidence that will be introduced against them. The FBI and several individual FBI agents appealed.
The high court found the 9th Circuit was wrong to find that the state-secrets privilege was modified when Congress passed FISA and remanded the case to the lower courts. But Alito didn’t state that the lawsuit couldn’t proceed.
The Greater Los Angeles Area office of the Council on American-Islamic Relations (CAIR-LA), the ACLU, and UCLA’s Center for Immigration Law Policy hailed the ruling as a victory.
The Supreme Court “decided that we can continue to fight our case to hold the government accountable for illegally spying on the Muslim community,” Sheikh Yassir Fazaga, the lead plaintiff, said a statement provided by CAIR.
“Fifteen years ago, the FBI looked us all in the eyes and assured us unequivocally that they were not spying on us.”
“We trusted them. But they lied, and our sacred community was shaken to its core. Today, we live to fight another day in our struggle to ensure that Americans who practice Islam are protected by the sacred right to religious freedom that our Constitution guarantees.”
