State Secrets That Are Not Secrets in Black Site Case

and again during the oral arguments. Here are Chief Justice John Roberts and Justice is Sonya Sotomayor and Elena Kagan. Everybody may know about this, you know, as as it's no secret at all, But you don't have the United States government acknowledging that because it's not a state secret that he was tortured. The date he was tortured is not a state secret the place. Maybe, I mean, if everybody knows what you are asserting privilege on, like what

what exactly does this privilege? I mean, maybe we should rename it or something. It's not a state secrets privilege anymore. Zubeta is trying to get testimony from two CIA psychologists for a Polish investigation into the torture, but the federal government has blocked the subpoenas on the grounds of national security.

Joining me as former federal prosecutor Jimmy Garule, a professor at Notre Dame Law School, Jimmy tell us about Abu Zabeta, who's been held at Guantanamo Bay for almost twenty years. Abeta was believed by the US government, the CIA in particular, to be a high level Al Qaeda official, and he was abducted in Pakistan back in March of two thousand two, and then he was taken to a black site in Poland, and black site refers to a location where he was held outside of the jurisdiction of the U S courts

for the purpose of interrogation. The interrogation involved something called enhanced interrogation techniques, which included water boarding and other technique stress positions, being kept up sleep deprivation for literally days at a time. They didn't effect amounted to torture. So

what is the issue in this case before the Supreme Court. Well, the issue involves an attempt by Abu Zabda's lawyers to subpoena to ci A contractors by the name of James Mitchell and Bruce Jesson, their psychologists, and they were retained by the CIA to develop these enhanced interrogation techniques that were used against suspected members of al Qaeda after the nine eleven terror attacks in and at It to obtain from them information regarding future terrorist attacks, the dates and

locations of those attacks, and these witnesses are being subpoena to assist in a Polish criminal investigation involving again the use of these black sites being located in Poland and used to detain a wasabeta and used to torture him pursuanto these enhanced interrogation techniques. So the government is claiming that this involves state secrets and national security. It's called the state secrets privilege, and it's a privilege that extends

to the government. It permits the government to bar the disclosure of information if there is a quote reasonable danger end quote that such disclosure would expose military matters which, in the interest of national security, should not be divulged. Why is this torture even being considered a state its secret. There've been countless news stories, books, a Senate report, even a movie about it. So that's the issue. So that's one of the important issues before the Supreme Court. And

so it's no longer a secret. I think it's well known. In fact, the Polish government has admitted that its territory was used by the CIA for the purpose of detaining Abu Zabeta and others. So the fact that it's public knowledge and it's not a state secret, does the state

secrets privilege apply? And the government maintains that it does, even though again this information is well known, because if it was disclosed or if these individuals were permitted to testify and this Polish criminal investigation, it would confirm, it would actually confirm what is known. It would confirm that Poland was being used or permitted to be used by the United States government for establishing or using these black sites. So what was the main concern that you heard during

oral arguments from the justices? Was there one in particular that stood out well? I think there were concerns expressed by several of the justices on exactly the point that this is no longer a state secret. This is a matter of public knowledge. This is well known, so the

state secrets privilege should not apply. And so the Justice has really pressed the government lawyers on that point, and again the government's response as well, if these individuals are permitted to testify, it's going to confirm what is believed, and so right now it's kind of understood, but now this will make it a fact. It will confirm that

Poland was used by the CIA for these purposes. And the claim is further than that, this is going to undermine our relationship, the U S relationship with foreign allies, because again it was understood that when this black site was established in Poland, that it would not be disclosed by the United States, and so this would undermine that agreement, and then therefore foreign governments would be less willing to cooperate with the United States on national security matters in

the future. Justice Briar so to Mayor and Gorset suggested that Abu Zabeta testify himself about the torture, and there was a really tense exchange when the Assistant Solicitor General refused to give them an answer about whether the government would allow that. And I think some of the other justices were agitated as well, because here it's interesting kind of going back to the fundamentals of the state secrets privilege.

It's an attempt to reconcile to competing interests. So national security on the one hand, but on the other hand, it's the plaintiff's right to have his day in court, the rights who provide a plaintiff and avenue of judicial relief, and so generally national security trump's the plaintiff's right of

a civil action on a civil remedy. But it seems that when this is a matter of public knowledge, that the now sational security interest is less compelling, substantially less compelling in that situation, and the plaintiff, again, you should be permitted to pursue a judicial remedy. And to that point, justice is Stephen Bryant and Brett Kavanaugh asked some questions about his detention that were really beyond the scope of the issues in the case. We said, you could hold

people in Guantanamo. The words were active combat operations against Taliban fighters apparently are going on in Afghanistan? Were there not anymore? Mr? So? What's the what? Why is he there? Is the United States still engaged in hostilities for purposes of the a u n F against Al Qaeda and related terrorist organizations. That is the government's position. Well, this addresses a very important question, but it's a separate question, and it goes to the issue of pre trialed attention

military detention. So abus of Beta has been obtained by the US government since March of two thousand two. It's it's almost been twenty years. He hasn't been charged with a crime. And the justification for his detention is that the United States is engaged in an armed conflict with al Qaeda, so called war with al Qaeda, and under the law of armed conflict, under the law of war, enemy combatants, the enemy can be detained as a preventive measure to prevent them from taking up arms and returning

to the battlefield and killing American soldiers. So here now, in light of the fact that the leadership of al Qaeda has been decimated, it's on the run. It's a very disorganized terroristy organization at this point. And furthermore, the US has now withdrawn all of its military forces from Afghanistan. Can it still be said that the United States has

involved in an armed conflict that justifies military detention. And if the answer to that question is no, there's no longer an armed conflict, then Abu Zabeta should be released from detention. So there's been a habeas proceeding pending for the last fourteen years. How long can they keep him? President Biden and others have talked about the Forever War. Well, the thought was that the Forever War had come to

an end when American troops were withdrawn from Afghanistan. But the Biden administration is still maintaining that the United States is at war with al Qaeda and other terrorist organizations and therefore suspected members suspected members of al Qaeda can continue to be held indefinitely. And I think that's very troublesome. More than troublesome, I think it's tragic because here the United States promotes itself as being a democracy based on

the rule of law. Well, how can someone be held for approximately twenty years without criminal charges being filed against him and without being convicted of any crime. That just flies in the face ace of fundamental fairness, It flies in the face of new process, It flies in the face of the rule of law. So how do you think the court is going to rule here? To be honest with you, June, I wouldn't be surprised if they find some way to continue to recognize national security and

the state secrets privilege. I just think that the courts again are very reluctant to second guests the government's claim of national security. Again, they're not well positioned to make that determination. Is that even a justiciable issue for them? Is that a political question that they shouldn't be involved in? And then I think there's a pragmatic concern. At the same time, if they say that the state secreence privilege doesn't apply here, then what's the precedent that that sets

in future cases? Is that a slippery slope where now other plainists are going to be able to introduce at trial evidence that implicates national security. So I think if it's a ruling in favor of Abazobaida, think it's going to be a very very narrow ruling. At the same time, I wouldn't be shocked if they come back and affirm the doctrine against Obbusaveta. This is just one of two state secrets cases that the Supreme Court is going to hear this term. Does that show that the justices want

to to maybe tighten the privilege? I think so. I think so because the facts now are so extreme. Again, we're looking at individuals that have been held without trial, without criminal charges for over twenty years, and when they're attempting to challenge uh their attention and seeking to use classified information to to justify their release or justify some type of judicial remedy, the state secrets privilege is raised

every time to prevent that from happening. And in addition, with respect of the state secrets privilege, whether there's really a national purity interest implicated, the courts are not in a position to second guess the US government's claim of national security. So the courts have been very deferential to

the government's claim of state secrets. And so I think now the Supreme Court has has become a little weary of that and concerned that it's being abused by the government in a way again it's dist inconsistent with our constitutional values. Thanks Jimmy. That's Jimmy Grule of Notre Dame Law School. And with that, I would like to formally raise the flag and began Boston Pride. The LGBT Pride flag is just one of the many flags that you

may see flying over Boston City Hall. What you won't see is the flag of a Christian group called Camp Constitution. The city has refused to allow the group to display its flag, which features a red Christian cross on a blue background. The first Circuit Court of Appeal said that was okay, but the Supreme Court has decided to take another look at the case. My guest is Richard Garnett, a professor at Notre Dame Law School and director of the Notre Dame Program on Church, State and Society. Rick,

why do you think that justice is took this case? Well, there's an old joke, but it's not really a joke that the justices usually don't grant review if they're going to affirm. So my reading is that the justices are at least a substantial number of the justices believe that the decision below was inconsistent with the courts precedents on free speech in public forums and on the so called

government speech doctrine. So my prediction is that they took the case in order to correct the lower court's decision and to make clear that in a public forum, religious speech by private citizens is constitutionally protected. The Christian group's argument is that the flagpole is a designated public forum, so they have First Amendment rights. Tell us more about that obviously, the government owns a lot of property, and when we talk about government property, we're not just talking

about land. The idea of a forum has been extended to all kinds of speech media, so it could include, you know, a bulletin board or something like a flag pause we've seen here, and the Court has developed auctions over the last decades saying that once the government opens up space for private expression, it can't discriminate against private

expression on the basis of the expression's viewpoint. So even though it's on public property, and even though you know, generally speaking, the government gets to manage its own property, once the government designates a space as being for the

purpose of private speech, it then can't discriminate. And what the Christian group is saying here is that the exclusion of their flag from this designated forum, which was the flagpole and display program, that that constituted discrimination against religious speech, and that that kind of discrimination is not justified by the establishment clause, and it's not permitted by the free exercise clause. And what is Boston arguing in response to that?

The other argument draws on the so called government speech doctrine, and that is that when the government is speaking for itself. It's allowed to choose its own messages. So there have been cases, for example, when a group wanted to put up a religious symbol on public property and they said, look, there's some other monuments on this property, like the Ten Commandments, so you know, you can't discriminate against us. You have to allow our message to be there too. And the

court said, no, that wasn't a designated forum. That was the government speaking for itself. So this is the kind of thing that law professors love to write exams about. How do you distinguish between cases where the government is speaking for itself on its own behalf from cases where the government has just opened up space for private speech.

So in this instance, the counter argument that know, the decision about what to display on the flagpole, that's the government speaking for itself, and therefore it's allowed to pick and choose, and it doesn't have to display religious speech if it doesn't want to. So it'll be a fun little exercise in deciphering Supreme Court doctrine and drawing fine distinctions. But the lower court had agreed with the government that this did not violate the Christian group's free speech rights.

The Boston City flag includes the city seal, which features a Latin inscription that means God be with us as He was with our fathers. Yeah, what's the distinction because the name of God is mentioned on our money, in our courtrooms. So where they draw the line. The short answer is there isn't a line. As you point out, the government is permitted and does use religious terminology and symbols all the time, and the courts have made it pretty clear that the mere fact that the government does

that doesn't violate the Establishment clause. So you know, the city of Los Angeles, which is named after Jesus's mother, doesn't have to change its name, nor does the city of Sacramento, or the city of Saint Augustine and so on and lots of times they'll be historical seals and symbols that contain religious imagery. You know, there's the Ten Commandments on the wall of the Supreme Court room itself.

There is no bright line test. In years past, what the court has asked to trying to decide whether the use of a symbol goes to far is whether the use of that symbol would be perceived by the reasonable person as the government's endorsing of religion. But there's been a lot of criticism of that endorsement approach because it

also doesn't seem to have a bright line. I mean, what's the difference between acknowledging religion's role in our history on the one hand, and endorsing it in a coercive or you know, establishment aryan type way on the other. So the Boston flag, there have been lawsuits by various secularist groups or atheist groups that have tried to say that various cities flags and seals are unconstitutional. Usually courts don't accept those challenges. Usually they just differ to you know,

history and practice and so on. And you think that the First Circuit was incorrect in saying that it was government speech, well, I'm guessing that a majority of the justices think it was incorrect. The Court in recent years, with some exceptions obviously, but the Court has been pretty focused on enforcing free speech rules against government discrimination against religious speech, and the Supreme Court generally speaking, has been

very skeptical how government speech regulations. Now, there have been some exceptions, you know, involving Texas license plate program for example, But on my reading of the te leaves here, the Supreme Court is likely to say that the First Circuit got it wrong. So, knowing what you know, why do you think the First Circuit didn't know that? Seeing that the Supreme Court has expanded religious rights, and especially now

with the six member and conserving majority. Well, um, you know, in fairness to the First Circuit, Uh, it's it's it's reasonable to think that the the line, but that sometimes the line between a designated public forum and a government speech context is it is a fuzzy one, and reasonable minds can can sometimes disagree. Um. I do think that the First Circuit at present is um, you know, more attached to what we might call uh separationist values when

it comes to the establishment cause. Then the Supreme Court is um, you know, there's another there's another First Amendment case from the First Circuit that the Court is hearing this term involving um um public funding of kids who attend religious schools in the state of Maine. And that's

a First Circuit decision too. So it could be that just you know, there's a given how courts are made up at various points in time, that there actually is a slight difference in um philosophy about what the establishment clause means between the two courts. But I assume it's a good faith disagreement. I just think, and I'm inclined to predict that the First Circuit is gonna um be overruled. Here tell us about the other first Circuit case. Yeah,

it's a case called Carson Um. I should disclose that I file a brief in it, So I'm not neutral. But this is a case that is um building on some decisions for the last few years, when the Court has held twice in the last several terms that government once they once the government decides to allow um public funding for various educational purposes, it can't discriminate against UH schools just because they're religious. It can't discriminate on the

basis of religious status. So um, you know, if you have a program that allows kids to use public funds to attend private schools, you can't single out religious schools for exclusion. That's the courts suggested that in this this case out of Maine is kind of an extension of that argument. We're here. The First Circuit said, well, Maine is not discriminating against schools simply because they're religious. It's

not discriminating on the basis of their religious status. Instead, what Maine is doing is looking more closely at schools and trying to decide whether a particular school has um is kind of pervasively religious, whether the money might be used for a religious purpose, or whether um for religious uses. The term that sometimes gets used and there, to my own view is that the Supreme Court is going to say that that the first Circuit did not correctly apply

the Supreme Courts precedents. I think the Justices are going to say that, look, once Main decides that it's going to allow parents to use public funds to attend out of district schools, and Maine has been doing this for decades, um, they can't single out otherwise eligible, otherwise qualified religious schools for exclusion. I think they're gonna really emphasize a kind of bright line rule that once you have a choice program,

religious schools get to participate. And that will be a significant development because there has been an expansion of interest in school choice in part because of the pandemic and all the school closures, and it could be relevant to

some states charter school programs and mechanisms. So I I do feel like, again to instance, where the Court the fact that the Court took the case suggests to me that they're going to overrule the First Circuit, and if they do um again, the results here could probably be more significant than the results in the Flagpole case. I feel like it would be shocking if they didn't overrule

the First Circuit in the main case. And I'm surprised at the First Circuit looking at the way the Supreme Court has been handling different cases involving funding, like the Playground case. Why they didn't rule differently. Well, again, I do think there's a um that the First Circuit judges are more inclined to kind of a stricter separation view

of how the First Amendments should work. And in fairness to them, um, the Supreme Court did say in the in the Playground case you're talking about, that's called Trinity Lutheran And in the more recent Montana case, the Court did the majority um invoke this anction between discrimination on the basis of religious status as opposed to discrimination on the basis of religious use or activity. So the justices

did make that distinction relevant. Now, there were some of the justices in concurring opinions, especially justice courses, who said, well, that distinction doesn't make any sense. But the First Circuit did um have you know it applied to distinction that the Supreme Court had itself invoked. My own view is that it didn't apply it correctly, And I'm also inclined to agree with Justice Corsets that the distinction doesn't make

much sense. So this might the big news in the Carson case could be if the Court um says, look, um, we're not going to get into We're not going to get in the business of drawing, um hair splitting distinctions between religious status or schools that happened to actually also have religious content. We're just going to say you can't discriminate on the basis of religion once you open up a choice program. And that strikes me as um kind

of a more coherent approach. But obviously there will be those who will say, no, the you know it can't it can't be right that the free exercise clause requires the government to fund religious education. I think that was kind of the view that was underlying the First Circuit's opinion.

But here too, I mean, in both of these cases, although I think the First Circuit will lose, they there were um distinctions and doctrines in the Supreme Courts decisions that that provided them a basis for the reasoning that they that they employed. What other cases involving religion is

the court taking up this term. The one that comes to mind for me right away is there's a case involving the execution procedures um of a particular state where UM under the Religious Land Use and Institutionalized Persons Act, which protects the religious exercise of prisoners, the question is whether the prison administrators can prevent a person's pastor or spiritual advisor from um being present in the room during an execution and also from um uh you know, perhaps

holding the person's hand or speaking uh during the during the execution protocol so um, you know the federal law and the free exercise clause. But federal law in particular says that if the government burdens a prisoner's free exercise of religion, that that burden has to be justified by a compelling state interest. And so there are kind of

two legal questions in this execution case. One is whether it really burdens somebody's free exercise of religion um to not have their pastor in the room or to not have the pastor touching our speaking, and then the question and then if that is a burden on religion, then the question is whether that bird is justified by the government's compelling interest in you know, safety and prison order

and things like that. Thanks Rick, That's Professor Richard Garnett of Notre Dame Law School, And that's it for the sedition of the Bloomberg Law Show. Remember you can always get the latest legal news by listening to our Bloomberg podcast wherever you get your favorite podcasts. I'm June Grosso and you're listening to Bloomberg