The Supreme Court upheld use of the “state secrets privilege” to allow the Government to prevent disclosure of information it claimed would harm national security, in a pair of cases decided in early March.
In U.S. v. Zubaydah, decided March 3, the Court held the Government can invoke the privilege to prevent disclosure of the location of a C.I.A. detention facility, even though the location had been previously reported by various sources.  
And in Federal Bureau of Investigation v. Fazaga, decided March 4, the Court held the Foreign Intelligence Surveillance Act (FISA) did not “displace” the privilege.
The state secrets privilege permits the Government to prevent disclosure of information that would harm national security interests.
Abu Zubaydah, a prisoner at Guantanamo Bay Naval Base, sought to subpoena two former Central Intelligence Agency contractors about the location of a C.I.A. detention facility where he was held in 2002 and 2003, and which he alleges was located in Poland.
Zubaydah sought to use this information to pursue litigation in Poland.  U.S. law allows district courts to issue subpoenas for production of testimony and documents for use in foreign tribunals.
The U.S. Government intervened.  It moved to quash the subpoenas on grounds that disclosure of the location of the C.I.A. site would harm national security.
The district court granted the motion to quash, and dismissed the subpoena application case.
But the Ninth Circuit ruled that the “state secrets privilege” did not bar discovery of the location of the site, since the location had previously been reported by various sources, including a Senate Select Committee report, the European Court of Human Rights, and at least indirectly, by public testimony and memoirs of the former C.I.A. contractors who were subpoenaed.
The Supreme Court reversed, in an opinion joined, at least in part, by seven justices.
“The C.I.A. itself has never confirmed that one or more of its clandestine detention sites was located in any specific foreign country,” the Court said.  “Neither, as far as we can tell from the record, have the contractors … named the specific foreign countries”, although they “have used code names to refer to the locations”.
To assert the privilege, the Government must submit to the court a declaration from the appropriate department head with control of the information that disclosure would harm national security. 
“The court itself must [then] determine whether the circumstances are appropriate for the claim of privilege,” the Court said.  “Judicial control of the evidence in a case cannot be abdicated to the caprice of executive officers.”
“Nonetheless, in assessing the Government’s claim that disclosure may harm national security, courts must exercise the traditional reluctance to intrude upon the authority of the Executive in military and national security affairs,” the Court said.
“The Government here has provided a reasonable explanation why … confir
mation or denial of the information Zubaydah seeks could significantly harm national security interests, even if that information has already been made public through unofficial sources,” the Court said.
The C.I.A. Director’s declaration stated that disclosure of the information could harm the “mutual trust” among foreign intelligence services that such information will not be revealed.
            “In a word, to confirm publicly the existence of the CIA site in Country A, can diminish the extent to which the intelligence services of Countries A, B, C, D, etc., will prove willing to cooperate with our own intelligence services in the future,” the Court said.
Nor does it matter that the persons subpoenaed here were “private parties,” the Court said.  Given the C.I.A. contractors “central role in the relevant events, we believe that their confirmation (or denial) of the information Zubaydah seeks would be tantamount to a disclosure from the CIA itself,” the Court said.
Finally, the Court noted that Zubdaydah’s need for the information “is not great.”  “At oral argument Zubayadah suggested that he did not seek confirmation of the detention site’s Polish location so much as he sought information about what happened there,” the Court said.
Justice Kagan concurred in the opinion’s reasoning about the location of the site, but would remand the case to allow Zubaydah to pursue other information he sought about his treatment there.
Justice Gorsuch, joined by Justice Sotomayor, dissented.
“There comes a point where we should not be ignorant as judges of what we know to be true as citizens,” Gorsuch said.  The events in question “have long been declassified”, and been the subject of official reports, books, and movies, he said.
“Still, the government seeks to have this suit dismissed on the ground that it implicates a state secret – and today the Court acquiesces in that request,” he said.  “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.”
Yassir Fazaga, a California resident, brought suit against the F.B.I. for alleged illegal surveillance due to his Muslim faith. 
The Government moved to dismiss Fazaga’s claims on the ground that they would require disclosure of “counter-intelligence information” that would threaten national security interests.
The district court dismissed.
But the Ninth Circuit reversed.  It ruled that Section 1806(f) of FISA “displaced” the state secrets privilege.
The Supreme Court reversed, in a unanimous opinion.
“This Court has repeatedly recognized a Government privilege against court-ordered disclosure of state and military secrets,” the Court said.
This case “require us to determine whether FISA affects the availability or scope of that long-established privilege,” the Court said.
Congress “enacted FISA to provide special procedures for use when the Government wishes to conduct [certain] surveillance,” the Court said.
Section 1806(f) of FISA establishes certain procedures for a court to review the “application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.”  
The section further provides that if the court finds that the evidence was unlawfully obtained, it must “suppress” the evidence or “otherwise grant the motion of the aggrieved person.”  But if the court finds that the evidence was lawfully obtained, it must “deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.”
These provisions of FISA do not “displace” the state secrets privilege for two reasons, the Court held.
“First, the text of FISA weighs heavily against [Fazaga’s] displacement argument,” the Court said.  “FISA makes no reference to the state secrets privilege.”
“The absence of any statutory reference to the state secrets privilege is strong evidence that the availability of the privilege was not altered in any way,” the Court said.  “The privilege should not be held to have been abrogated or limited unless Congress has at least used clear statutory language.”
Second, “nothing about the operation of [Section 1806(f)] is at all incompatible with the state secrets privilege,” the Court said. 
“The inquiries required by Section 1806(f) and our state secrets jurisprudence are fundamentally different,” the Court said.
“Under Section 1806(f), the central question is the lawfulness of surveillance.  Courts are instructed to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted,” the Court said.
“By contrast, when the state secrets privilege is asserted, the central question is not whether the evidence in question was lawfully obtained but whether its disclosure would harm national-security interests,” the Court said.
“We conclude that Congress did not eliminate, curtail, or modify the state secrets privilege when it enacted Section 1806(f),” the Court said.