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Read more informationThe Supreme Court of The United States Hears Oral Arguments in A Case Involving Sensitive National Security Information
In the US v. Zubaydah, a case regarding a plaintiff's access to privileged national security information discovery.
After the US Court of Appeals for the Ninth Circuit ordered the US to affirm or deny that it had a CIA facility in Poland, the US requested a writ. Zubaydah wanted the information to give it to international investigators who could subsequently charge Polish authorities with involvement in clandestine CIA torture operations.
The US' main argument before the Supreme Court was that the Ninth Circuit erred in two ways in failing to give the CIA director respect. First, by taking public opinion into account, and second, by allowing information to be coerced. The United States also claimed that accepting Zubaydah's request would jeopardize national security.
Justice Brett Kavanaugh questioned whether the privilege was constitutional or common law protection that Congress might change during the oral argument. The Supreme Court had not yet decided that question. Still, US counsel highlighted that the privilege was firmly anchored in the common law of evidence in the case of US v. Reynolds, where it was originally recognized.
Justice Clarence Thomas said that Zubaydah appeared to be looking for more evidence to link the torture to Poland. Zubaydah's lawyer attempted to pivot in his response, but Justice Amy Coney Barret argued that he may have agreed that the information was confidential.
Chief Justice John Roberts pushed the case even further, stating that the US government had not acknowledged the facility's location despite famous conjecture. According to Roberts, The United States Government argues this is very important because our friends, allies, and intelligence sources worldwide believe that we keep our word. We promised that this was a secret.