In two cases decided this month, the Supreme Court approved the federal government’s assertion of the “state secrets privilege,” which authorizes dismissal of litigation that would, if permitted to continue, result in disclosures that would harm national security interests. In FBI v. Fazaga, Justice Alito wrote the opinion for a unanimous Court, holding that a provision of the Foreign Intelligence Surveillance Act (FISA) governing admissibility in court of evidence obtained through electronic surveillance did not displace the state secrets privilege. In United States v. Zubaydah, Justice Breyer wrote the lead opinion for a somewhat fractured Court. Speaking for the majority with respect to the bottom line, the opinion instructed the lower courts to dismiss a discovery request on behalf of Abu Zubaydah, whom the United States subjected to multiple forms of torture, including over 80 sessions of waterboarding, on the ground that compliance with the request would require the government to acknowledge that Zubaydah was tortured at a CIA black site in Poland—even though everybody knows that’s where the torture occurred.
Was Zubaydah a One-Off?
The result in Zubaydah seems especially troubling given the bizarre nature of the government’s position. The lead opinion itself repeatedly acknowledges that Zubaydah’s torture occurred in Poland. Indeed, as Justice Gorsuch, joined by Justice Sotomayor, observed in dissent: “The location of the CIA’s detention site has been acknowledged by the former Polish President, investigated by the Council of Europe, and proven ‘beyond reasonable doubt’ to the European Court of Human Rights.” Nonetheless, a majority of the Court credited the government’s claimed interest in not itself officially confirming (or denying) the location of the site, which would supposedly undermine the ability of the United States to assure foreign intelligence services of its trustworthiness.
Poland is right now on NATO’s front line in absorbing refugees from and supplying aid to Ukraine as it fights for its life against Russia’s criminal aggression. Accordingly, the Zubaydah majority understandably did not want to do anything that might undermine cooperation between the U.S. and Polish governments. Still, government assertions of a national security interest will always involve high stakes. To preserve accountability, it does not seem unreasonable to ask—as the dissenters would have—that the government make a plausible showing rather than simply receiving “utmost deference” whenever it invokes the talisman of national security.
Perhaps, however, Zubaydah was a one-off. My Cornell and Verdict colleague Joseph Margulies is one of the lawyers who represent Zubaydah. He regards the Supreme Court decision as essentially a victory for his client, because, as he wrote last week, his team does not “particularly care that there was a site in Poland. We care what happened to Abu Zubaydah between December 2002 and September 2003, regardless of where he was, and want to question” the two architects of the CIA torture program, “who were with Abu Zubaydah during that period.”
I defer to Professor Margulies with respect to the practical upshot of the Zubaydah decision for Zubaydah’s case itself. However, the extremity of the position the Court vindicated—treating as a state secret a fact that everybody knows to be true and demanding precious little in the way of a showing of any actual concrete risk to national security—could have more serious consequences in future cases.
Where Does the State Secrets Privilege Come From?
Many evidentiary privileges are qualified. That is, they yield in the face of strong countervailing considerations. By contrast, case law makes clear that the state secrets privilege is absolute. Once found to exist, even the most compelling showing of need for the information to prove an important case will not overcome it.
Suppose that a plaintiff needs information to prove their case. However, even though the government is not a party, it may object that the information, though otherwise discoverable under the applicable statutes and rules, is a state secret. A court must then give great deference to the government’s assertions. If the plaintiff cannot prove their case without the evidence deemed a state secret, too bad; the court will dismiss the case.
Where does such a potent principle come from? There is no “state secrets” clause in the Constitution, nor does it appear in any statute—despite the fact that there exists a substantial body of procedural and substantive law governing classified information. Yet, as the Fazaga case underscores, the state secrets privilege arises independently from any statutory framework.
Justice Alito’s opinion in Fazaga reveals the true nature of the state secrets privilege. He writes: “This Court has repeatedly recognized ‘a Government privilege against court-ordered disclosure of state and military secrets.’” Here “recognized” is a euphemism for made up. The quoted language comes from a 2011 case. Justice Alito then cites four other cases but, notably, no authoritative constitutional or statutory text. Neither do any of the cases he cites rely on enacted text that expressly refers to a state secrets privilege.
Might the state secrets privilege nonetheless have constitutional roots? Something similar existed in English law at the time of the adoption of the Constitution. Perhaps when the framers vested “the executive power” in the president, they thereby incorporated by reference the powers of the king.
However, as Justice Gorsuch explains in his Zubaydah dissent, no such inference is warranted. After all, in key respects, the American Revolution repudiated the most far-reaching elements of royal prerogative.
Although not cited by the Court in Fazaga, the earliest cases to recognize what we would now call a state secrets privilege were two proceedings in the treason and misdemeanor trials of Aaron Burr in 1807. Chief Justice John Marshall presided over both trials, in which the government sought to withhold a letter from General James Wilkinson to President Thomas Jefferson. In the course of considering whether to issue a subpoena to the president, Marshall acknowledged that the government’s interest in secrecy in military matters would sometimes result in the suppression of otherwise relevant evidence.
In Zubaydah, Justice Thomas (in a concurrence joined by Justice Alito) disagreed with Justice Gorsuch (in his dissent joined by Justice Sotomayor) over how much deference Marshall thought was owed to a president who asserts a state secrets privilege. Although I think Gorsuch had the better of that argument, the details of his debate with Justice Thomas need not concern us here. For now, the key point is the nature of Chief Justice Marshall’s ruling. He clearly saw his role as ruling on the admissibility of evidence.
The Common-Law Nature of the State Secrets Privilege
In Marshall’s day and all the way up until 1975, when the Federal Rules of Evidence were adopted, the question of whether to admit evidence in federal courts was a matter of common law—that is to say, law made by judges. Even today, pursuant to Federal Rule of Evidence 501, “[t]he common law—as interpreted by United States courts in the light of reason and experience—governs a claim of privilege” in cases in federal court involving federal questions.
Accordingly, when I said above that the Supreme Court “made up” the state secrets privilege, I did not mean to imply that such making up the law was illegitimate. Nor is the Supreme Court unaware that state secrets cases call for the kind of judgments that trial courts routinely make in deciding what evidence to admit and what to exclude. For example in the 2011 decision I linked above, the Court quoted a 1953 precedent in referring to the state secrets privilege’s “‘well established’ pedigree ‘in the law of evidence.’”
Yet if the Court acts within its currently legitimate domain when fashioning and revising the state secrets privilege “in the light of reason and experience,” we might be better off if Congress provided more guidance. Absent the backing of either of the political branches, courts understandably will err on the side of national security when the government invokes it. The Zubaydah case—in which the administration asserted that official acknowledgment of an already very public fact posed a threat to national security—shows that the executive branch (regardless of whether the president is a Republican or a Democrat) will go as far as the courts allow with the public secrets privilege. Congress should rein it in.