United States v. Zubaydah (20-827)

argument 20-827

United States v. Zubaydah

Supreme Court of the United States 1h 10m 8 speakers 7 chapters transcribed 7 days ago official recording ↗

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What is the central legal issue the government raises about the CIA facility in Poland?

John G. Roberts 0:00

We will hear argument uh in case twenty eight twenty seven, United States versus Zubaidu.

James E. Pierce 0:07

Mr. Fletcher. Thank you, Mr Chief Justice, and may it please the court. Our nation's covert intelligence partnerships depend on our partners' trust that we will keep those relationships confidential. Respondents seek discovery that would compel a breach of that trust by confirming or denying the existence of an alleged CIA facility in Poland. And respondents seek that discovery not to vindicate any rights under US law, but instead in a discretionary Section seventeen eighty two application aimed at sending evidence abroad to a foreign investigation whose very purpose is to reveal and prosecute the alleged involvement of Polish officials in covert CIA activities. The CIA director explained why that compelled disclosure would seriously harm the national security.

James E. Pierce 0:51

The Ninth Circuit should have afforded deference to that expert judgment, and it failed to do so because it made two fundamental legal errors. First, the Ninth Circuit undertook its own inquiry into whether the existence of the alleged facility was a secret, given public speculation on that subject. But under this Court's decision in Reynolds, the question is not whether a court thinks that the information sought is secret in some abstract sense, it is whether compelled disclosure will harm the national security. That is a question that squarely implicates the CIA director's special knowledge and expertise. And here the CIA director explained that compelled disclosure would harm the national security because there's a critical difference between speculation, even widespread speculation, and formal confirmation by people with first hand knowledge.

James E. Pierce 1:38

Even the Ninth Circuit appeared to recognise the force at that point, and it did not suggest that respondents could have had the discovery they seek here from the CIA itself. Instead, and this was the court's second error, it held that two former contractors can be compelled to confirm or deny the existence of the facility under oath because they are not agents of the United States. But again the question is not the contractors' status under domestic law, it is how their compelled testimony would affect national security. And again, the Ninth Circuit should have deferred to the CIA director's expert judgment that our allies and adversaries would view compelled testimony by these contractors as a serious breach of trust.

James E. Pierce 2:13

I welcome the court's questions.

Clarence Thomas 2:17

Uh the Two contractors have testified about the treatment of detainees before, right?

James E. Pierce 2:23

That's correct, Justice Thomas.

Clarence Thomas 2:24

So why couldn't they they also testify here? What difference would it make?

James E. Pierce 2:29

It would make a difference because of the critical difference between the context of the testimony and what they would be conveying. In the prior contexts where they've testified in the Salim litigation and in the military commissions at Guantanamo, their testimony has focused on the nature of the treatment of detainees, on the what was done. That is information that the executive branch, after extensive consultation internally and with Congress, decided to declassify in twenty fourteen to facilitate public scrutiny of the United States' actions. So that information is no longer classified. and parcel of that declassification decision was a decision to keep secret, to keep the trust with our foreign partners.

James E. Pierce 3:06

And because this proceeding is all about revealing the involvement of foreign partners, it's fundamentally different from the testimony that has been given in the past.

Clarence Thomas 3:15

Um you say you offer the utmost deference standard. Um how would the government fail that?

James E. Pierce 3:22

So I uh you know candidly we think that as this court is recognized in in Nixon and in other cases implicating uh the executive branch's judgments about national security, a court should be hesitant to second guess the executive branch uh on such predictive judgments.

Clarence Thomas 3:36

So are you saying that it should never fail?

James E. Pierce 3:38

No, certainly not, uh Justice Thomas, but I think uh the circumstances where it could should be relatively unusual, especially given the high requisites that the executive branch itself applies before asserting the state secrets privilege.