HOSTS

PETER SHAMSHIRI

RHIANNON HAMAM

MICHAEL LIROFF

[ARCHIVE CLIP: We will hear argument in case 28-27, United States v. Zubaydah.]

Leon Neyfakh: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael are talking about United States v. Zubaydah, a case from 2022 that centers around what the government considers state secrets.

[NEWS CLIP: If everyone knows about a secret, then it's not a secret, right? Well, not according to the Department of Justice, arguing to the Supreme Court that some of the details around the treatment of a suspected Al Qaeda operative should stay classified. That's even though details of that detainee's interrogation and torture at the CIA's so-called black sites have already been revealed.]

Leon: After the September 11 attacks, the CIA captured Abu Zubaydah, a suspected Al Qaeda leader, and took him to a black site in Poland. Zubaydah was interrogated and tortured for years before being moved to Guantanamo Bay. While building a case to seek justice for his treatment, Zubaydah's lawyers requested testimony from the CIA contractors who tortured him. But the US government blocked it, invoking state secret privileges on the basis that they could not confirm or deny the existence of a black site in Poland—even though everyone already knew there was one. The case went to the Supreme Court, which ruled against Zubaydah, arguing that sharing any more information would constitute a national security threat. This is 5-4, a podcast about how much the Supreme Court sucks.

Peter Shamshiri: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that are bankrupting our civil rights like the words "please" and "thank you" are bankrupting OpenAI. I'm Peter. I'm here with Michael.

Michael Liroff: Hey, everybody.

Peter: And Rhiannon.

Rhiannon Hamam: Hello. It's expensive.

Peter: Yeah. Recently reported that the niceties that people use when interacting with the robots at ChatGPT are actually costing the ChatGPT operation tens of millions of dollars because they have to burn electricity to respond to "please" and "thank you." And I guess no one has thought to come in with a quick solve for that problem.

Michael: [laughs] It's incredible.

Peter: It's the future, baby.

Michael: Yeah.

Rhiannon: Everything I hear about AI, it's just like worse and worse and worse. Like, it's a shittier and shittier product that's more and more expensive, more and more detrimental and destructive of the environment.

Peter: I do think it's brought us some beautiful stories.

Michael: Right. I was gonna say human interest stories.

Peter: Stories of human connection. Rhi, I know that you hadn't heard about this, but Henry Blodgett, the CEO of Business Insider, one of the bottom tier publications on the internet ...

Rhiannon: Yeah. Toilet paper publication.

Peter: They put together, like, an AI colleague.

Michael: Her name's Tess. Tess?

Peter: Yeah, Tess. Name's Tess. They use ChatGPT.

Rhiannon: Like an employee that's like AI person?

Peter: Right. Right.

Rhiannon: Okay.

Michael: To grow social media platforms, digital platforms.

Peter: And then they had the AI produce her own headshot, which then, of course, created an AI-human headshot, not a real human of, you know, a good looking middle-aged woman, right?

Rhiannon: Okay?

Peter: And he says, "And this led to an interesting, and for me, regrettable moment when I saw Tess's headshot amid the giddiness and excitement of that first hour of working together."

Rhiannon: Oh, no.

Peter: "I confess that I had a—well, human response to it. One that as a human, I wanted to share with Tess."

Rhiannon: What the fuck?

Michael: [laughs]

Peter: He goes, "So with trepidation, I told Tess this. 'This might be an inappropriate and unprofessional thing to say, and if it annoys you or makes you uncomfortable, I apologize and I won't say anything like it again. But you look great, Tess.'"

Rhiannon: To the AI employee, to the fake headshot.

Peter: To the AI, which again ...

Michael: To the fake headshot.

Peter: ... is not a person.

Rhiannon: Right. "Tess? I'm bricked up."

Michael: [laughs]

Peter: Osita Nwanevu posted, "Editor creates an AI executive who is an expert at building and scaling digital media companies. Decides within minutes that the AI is, quote, 'One of the most knowledgeable and energetic colleagues he's ever had.' Asks the AI to create a headshot of itself. It does. He sexually harasses it immediately."

Rhiannon: [laughs]

Michael: So good. It's so good.

Rhiannon: Oh my God!

Peter: Oh, Jesus Christ. All right. Today's case: United States v. Zubaydah. This is a case from just a few years ago about state secrets. Keeping secrets, something that perhaps Henry Blodgett could learn about.

Michael: [laughs]

Peter: Shortly after 9/11, Abu Zubaydah was wrongfully accused of being a high level Al Qaeda operative. He was captured, and he was eventually sequestered to a CIA black site in Poland where he was tortured.

Rhiannon: Mm-hmm.

Peter: He brought legal action in Poland, and in 2017, he tried to get testimony from a couple of CIA contractors who tortured him. But the government said, "No, we cannot provide testimony about that because it's a secret."

Rhiannon: It's a secret.

Peter: Shh!

Rhiannon: You cross your heart and hope to die.

Michael: Yeah.

Peter: I pinky promised. I pinky promised the President I wouldn't say anything.

Rhiannon: God!

Peter: The Supreme Court, in a 7-2 decision, agreed with the government. This decision is not only a good example of how the court expanded executive power during the war on terror, but how they helped create the current constitutional crisis, because the Trump administration seems poised to consistently invoke the same state secrets doctrine in litigation about its deportation regime. So Rhi, I'll hand it off to you for the background here.

Rhiannon: Yeah. You know, let's start with a day, a date maybe some recall: September 11, 2001. Wow. Surely we've talked about 9/11 on this damn podcast before. I was in eighth grade. Peter, you're in high school.

Peter: That's right.

Rhiannon: Michael, were you a freshman in college?

Michael: Yeah, I was literally in the mountains on, like, our introductory freshman hiking trip when it happened.

Rhiannon: Nice. Nice. All right. Yeah, so that was September 11. That's what happened on September 11: Michael was in the woods. So fast forward several months after September 11, 2001. Obviously, the war on terror is starting, has begun in earnest. And in March 2002, Pakistani forces, working with the CIA captured the alleged right-hand man to Osama bin Laden, a man known as Abu Zubaydah. Now, Abu Zubaydah was alleged to be, you know, this, like, senior Al Qaeda lieutenant, said to have participated in, like, planning terrorist attacks, training Al Qaeda fighters, carrying out work for bin Laden, right? Like, having BF4E necklaces with bin Laden, like, the whole nine yards, right? Let's pause right here, and I just want to say, like, really quick: if you would like to learn about Al Qaeda and the relationship between Al Qaeda and the CIA and the US government, I really highly recommend a podcast called Blowback, the season on Afghanistan.

Peter: Good show.

Rhiannon: Lots to learn there. Yeah. Okay, so they snatch up Abu Zubaydah in March, 2002 in Pakistan. Now, he was transferred to a CIA black site in Thailand where over the course of several months he was subject to, quote-unquote, "enhanced interrogation techniques." I.e. he was extremely tortured, right? Now, wait a second. Isn't it the case that renditions of prisoners to other countries which commit torture, isn't that the case that that's illegal?

Michael: You would think.

Rhiannon: Well, actually, just days before Abu Zubaydah was captured ...

Peter: Isn't there someone you forgot to ask? John Yoo.

Rhiannon: [laughs] Right. Right, right, right. You silly goose! You didn't remember that John Yoo is a guy. Because just days before Abu Zubaydah was captured, John Yoo had authored a memo, now called or referred to as "the rendition memo," providing a legal case for letting the CIA rendition detainees to their black sites in places like Thailand. Great. Right? Legal justifications left and right for what's going on.

Rhiannon: So the US had already started to do that, and well, wait a second. What about US officials themselves, CIA officers and CIA contractors themselves, employed by the United States? Wouldn't them doing torture, carrying out these enhanced interrogation techniques, wouldn't that be illegal? No, you fucking dumbass. Literally, in the days immediately following the capture of Abu Zubaydah, many Bush administration officials start discussing at length whether the CIA can legally torture this guy. National security advisor Condoleezza Rice, among other officials, you know, eventually tells the CIA, "Yeah, you got the green light. You can legally do torture." And of course they did. You know, Dick Cheney famously said he, quote-unquote, "Signed off on it." Et cetera, et cetera.

Michael: Mm-hmm.

Rhiannon: But back to Abu Zubaydah. He was in Thailand for a time, and then in December of 2002, he was transferred to another CIA black site—which the US government has actually never confirmed the location of. Zubaydah and others, you know, reporting, et cetera, has led people to believe that that black site is in Poland. And in Poland, Zubaydah was tortured for four years before he was transferred to Guantanamo, where he remains today.

Rhiannon: And details of that torture came out actually in 2019 when Zubaydah's own accounts that he had given to lawyers of the torture he had survived were published. This is really truly unimaginable, barbaric stuff. In one month alone, in August of 2002, he was waterboarded 83 times. He was routinely deprived of sleep for days. He describes being chained to a chair for a period of what he guesses is six weeks. He would have to stand on one leg for hours until he passed out. He was kept naked for days, weeks, months. He spent more than 11 days in a box the size of a coffin. He spent 29 hours in a two-and-a-half foot by two-and-a-half foot box. There are reports he drew detailed drawings of what happened. It's truly unimaginable.

Michael: Yeah. They said at his longest they believe he was kept awake for 126 hours, which is just insane. It's insane. I've had insomnia, and I've been up for, like, 80 plus hours before. And your brain stops working. Like, you lose time, you just go into a fugue state. It's fucking insane.

Rhiannon: He says at times that actually, a doctor is brought in to evaluate him, and the only reason he was allowed to sleep for short periods of time is because the doctor said, like, "This person will permanently lose their mind. Whatever interrogation you're trying to do, he's not going to be able to give you any information if you keep him awake for any longer."

Rhiannon: And so these details, horrific as they are, they came out in 2019 to sort of like the wider public. But when Zubaydah was transferred to Guantanamo from Poland in 2006, he gets lawyers, and this legal case begins a few years later. In 2010, his lawyers filed a criminal complaint in Poland, asking prosecutors there basically, like, we want to hold accountable the officials who were responsible for torturing him. Of course, the United States refused to cooperate. The case got stalled, but the Polish prosecutors reopened the case in 2015. The United States refused to cooperate again, and about a year later, the Polish prosecutors invited Abu Zubaydah and his legal team, of course, to submit evidence that would help them in their investigation.

Rhiannon: So that's how this case gets started. His lawyers file a discovery application, basically asking a federal court in the United States to order a person to provide testimony or documents for use in, like, a foreign criminal investigation or a foreign tribunal. Specifically, Zubaydah was requesting that two CIA contractors who had designed the torture program and who had carried out that torture program on Zubaydah himself, that they have to give testimony, that his lawyers be permitted to take depositions of them. And so that's what's at issue in this case: Zubaydah's legal team requesting information, requesting testimony from Zubaydah's torturers, and the US government saying, "No, that's a secret."

Peter: Yeah. So let's talk about the state secret privilege. This more or less works like any other privilege. You're probably familiar with attorney-client privilege, right? The law protects certain types of information from disclosure in legal proceedings, and state secrets are one of them. There's historical precedent for this that traces way back many centuries to English common law. The Supreme Court recognized it formally in the 1950s. There was a case about, like, a military plane crash during a top secret mission. The families of the men who died wanted some information, and the government said, "Nope. State secrets. State secrets, guys."

Rhiannon: Mm-hmm.

Peter: So here, Zubaydah is seeking testimony from these agents that the government says would intrude upon state secrets. The CIA claims that the testimony would confirm or deny whether Poland was cooperating with the CIA, and specifically whether the CIA was running a detention facility in Poland, which would, according to them, significantly harm our national security.

Peter: So the weird thing about this argument is that it is public knowledge that the CIA was running a black site in Poland. And the majority here is written by Justice Breyer, and he acknowledges this.

Michael: Yes.

Peter: There was a substantial amount of reporting about it. The court references that reporting. But Breyer says that this is different. If this testimony were provided, it would be CIA confirmation of the black sites, which would harm their ability to maintain clandestine relationships with other countries. Basically, it would potentially erode trust between the CIA and foreign intelligence agencies that work with them if they are made to confirm the existence of this black site, right? Throughout the opinion, the court says that right now there's speculation that the black site existed in Poland, but if the CIA agents testified about it, it would be confirmed. But is it speculation?

Michael: [laughs]

Peter: Because a European court confirmed the sites. Gorsuch mentions that the first time a European court confirmed the sites was, like, 2007.

Michael: Yeah.

Rhiannon: Yeah.

Peter: So we're 15 years past at this point. And the Polish government confirmed the sites. Both the president at the time and the current president of Poland had confirmed that these sites existed. So it's not speculation.

Michael: Right.

Rhiannon: Right.

Peter: Like, the CIA is asking for permission to deny reality here in a way?, right? It's like everyone has a telescope and they can see a black site, and the CIA is like, "We would like permission to pretend that that's not happening."

Michael: Mm-hmm.

Rhiannon: Right.

Peter: This is such a weird way to talk about it. And it's not something that applies to any other kind of privilege that I'm aware of. If something is, like, public information, you can't claim privilege over it in any case that I'm aware of. And, like, of course it doesn't make any fucking sense.

Rhiannon: Yeah.

Peter: So to give you an example of how much of this is public knowledge at the time, one of these CIA agents wrote a book about his experience, like, doing the torture.

Rhiannon: Yeah, torturing people at CIA black sites.

Michael: The Senate did a whole 600-page report on torture that talks explicitly about Zubaydah's being tortured in Thailand. The only thing missing was what happened to him in Poland, right?

Rhiannon: Yeah.

Michael: Like this is like ...

Peter: And acknowledges the existence of black sites.

Michael: Yes.

Peter: They're just like, "Well, other agencies wouldn't trust us." And it's like, why?

Rhiannon: [laughs] Yes! Yes!

Peter: Because everyone already knows this. Why would you confirming something that everyone already knows harm your standing with foreign intelligence agencies? It just doesn't make any fucking sense. It doesn't. It doesn't.

Michael: I think it's worth noting that Gina Haspel was chief of the black site in Thailand, and intimately involved in the torture program, and was the deputy director of the CIA in 2017 and 2018 and acting director—or actual director rather—of the CIA from 2018 to 2020. So a lot of the time period we're covering here, like, one of the most senior, if not most senior person at the CIA was involved in the torture program. So this is just embarrassing for the government. It's embarrassing for the director or deputy director of the CIA, like, personally, individually.

Peter: Right. Right. Now I want to read one of my favorite lines from the opinion. Early on, Breyer says, "Of course, our answer to that question is not a judgment of Zubaydah's alleged terrorist activities nor of his treatment at the hands of the United States government. Obviously, the court condones neither terrorism nor torture, but in this case we are required to decide only a narrow evidentiary dispute."

Rhiannon: Classic.

Peter: You know things are going well in the United States when you're starting off opinions like, "First of all, we don't condone terrorism or torture. Let's just get that out of the way."

Michael: Right.

Rhiannon: Pero. I have a but.

Peter: You're gonna think based on what we say next, that we do condone terrorism or torture.

Michael: One of those two at least. Yeah. If not both.

Rhiannon: Right.

Peter: Let's get it out of the way right now. We don't. You're gonna think because we are ruling that you can't get any evidence about torture, that we do condone it, but actually we don't. For the record, so it's very well established that this guy was not high level Al Qaeda. That's something that the government has admitted they fucked up with their like, initial diagnosis. The extent of, like, his involvement in terrorism, subject of some dispute. There are people who still say he was involved, some people who say he wasn't at all.

Rhiannon: And again, he is still today at Guantanamo with no charges.

Peter: Right. Right.

Michael: Do you know who still believes he was heavily involved in terrorism is Justice Clarence Thomas, who writes a concurrence. Most of it's kind of technical. He's in a technical dispute with the plurality because like Peter said, they base it on this case from the '50s, Reynolds. And Reynolds sort of has two parts to their test. One is, like, is there actual state secrets involved? Are they very sensitive? And the other is is there a necessity on the part of the person requesting this information? And the majority says you do it in that order. First you ask if there are secrets involved, and then you see if there's necessity. And Thomas is like, "No, you do it the other way. First you ask if there's necessity and then you do—" it's so stupid.

Peter: Yeah, but it gives him an excuse to say that he doesn't actually need this information.

Michael: Yes. I read the case, by the way. I read the '50s case. Thomas definitely has the better reading of it. His order's correct. I think the confusion is that they don't really lay it out as a test, and in the reasoning they first mention the state secret stuff and then mention the necessity stuff. But it's pretty clear from the way they describe it that the necessity comes first.

Michael: I don't think it matters because I think that test is stupid and misapplied here. I'm gonna read from the opinion—this is the '53 case. Again, this was a case about a test flight. This was a test flight of experimental electronics and planes in the middle of the Korean War, during active hostilities in the Korean War.

Rhiannon: Yeah.

Michael: So they say, "It is a time of vigorous preparation for national defense. Experience in the past wars made it common knowledge that air power is one of the most potent weapons in our scheme of defense, and that the newly-developing electronic devices have greatly enhanced the effective use of air power. It is equally apparent that these electronic devices must be kept secret if their full military advantage is to be exploited in the national interests." Compare cutting-edge jet fighter technology in the middle of a hot war ...

Peter: And a decade off the largest war in human history.

Michael: Right. Yeah, we had a torture site in Poland 20 years ago. It's common knowledge, but confirming that might harm our relationship with Polish and other European intelligence agencies.

Peter: Mm-hmm. Mm-hmm.

Michael: How is that even in the same fucking ballpark?

Rhiannon: It's ridiculous. We were doing medieval barbarism to a guy. Everybody knows it. Everybody also knows where we were doing it, but state secret.

Michael: Yeah.

Peter: I'll also add that there was a—I think it was a report done maybe 50 years after the Reynolds case where they revealed that, in fact, there probably were no state secrets in the crash reports that the families were seeking. So even in that case where, like, on the surface, it makes sense as a state secret, right? Top secret technologies, et cetera. Even in that case, the government was bullshitting.

Michael: Of course. Of course.

Rhiannon: And we knew that by the time this case is coming up, you know?

Michael: Yeah. I do think this is really good, though. Like, I think it's—I mean, it's not a good concurrence at all. I'll talk about how fascistic it gets in a second, but I do think it's good because I think it highlights we've been in a state of exception, a state of emergency powers, you know, getting a lot of preference over civil liberties, over individual rights for over 20 years now. The comparison between yeah, we did torture 20 years ago, and we still have to protect everybody involved in that, to we're in the middle of a hot war in Korea right now, I think it's apt, actually. They're clearly not analogous at all, and yet our law and our politics have acted like their equivalent.

Michael: You know, in, I think, the Patreon episode we did on the Salvadoran prison, I mentioned that they've been in a state of emergency for three years. We've been essentially in a state of emergency for two decades—which we'll talk more about—is a lot of what our problems are now. I did think there was a funny line where he's angry at Justice Gorsuch in dissent, and he says, "Justice Gorsuch indicates that courts should ask whether discovery would present a reasonable danger to national security. But the question remains: in whose judgment? His answer is clear. Our independent judgment." He italicizes "our." And he's like—he thinks this is, like, damning. It's like, yeah, dude, you're fucking judges. That's your whole thing is judgment. When you make a decision, it's literally called the judgment of the court. Your judgment is supposed to be, like, your thing. Of course!

Rhiannon: Adjudication is kind of what you do. Yeah.

Michael: It's like, "Our judge." Oh, bum, bum, bum, judges! Like, it's fucking insane, but it ties into his whole fascistic worldview, which is that, like, since not even 2001, since 1993, in the first bombing of the World Trade Center, we've been in a state of exception. And the executive has had broad emergency powers to do whatever the fuck it wants, right?

Rhiannon: Yeah.

Michael: He calls Zubaydah an alleged "survivor" of CIA interrogation.

Peter: What does that even mean?

Rhiannon: Like, he's trying to be sarcastic. He's trying to demean. Like, oh, you're calling him a survivor, but actually he's a disgusting terrorist. But on the facts, he survived torture, so he actually is a survivor of torture.

Peter: Right. That's the thing is he actually is literally a survivor of torture. There's no, like—he wants to do mocking quotes, but there's nothing to mock because someone's just saying the facts. And so then he's just, like, trying to do a mean voice in the Supreme Court reporter.

Michael: It's really disgusting. Kavanaugh writes a concurrence. It's really stupid. Thomas makes fun of it, and rightfully so, where he's, like, also nitpicking, and he's kind of like, "Thomas is right and Breyer is right. Because I think Reynolds should have three steps. I think we should ask about secrets, and then we should ask about necessity, and then we should ask about secrets again." And it's like, what the—shut up! Just shut up. What are you doing?

Peter: He loves to concur. Just let him go, you know? He's a chatty boy. He wants to talk.

Michael: Oh, God, it's so—I was so angry reading it.

Peter: He was like, "How can I make a concurrence even though I have nothing to add?" He was like, "What if—what if I say we should do secrets—secrets first, and then necessity, then secrets again? A little secret sandwich."

Michael: There's, like, so much contempt in Thomas's concurrence describing this, where he's like, "Kavanaugh's Reynolds step zero." And I can just hear the disdain, you know? Like, he's just like, "What are you talking about, dude?" And rightfully so. So stupid.

Peter: It's also very funny that, like, you end up parsing this case from the 1950s where the court wasn't even, like, clearly laying out a test, and everyone's trying to figure out all the contours of the test. And it's not even the first time that, like, state secrets came up at the Supreme Court—there's a case from, like, the 1870s—but they didn't, like, describe it as such. They didn't, like, formally announce it as such. But what ends up happening with these cases is like, these justices are trying to, like, parse this thing, and it's just like, who gives a shit? Who gives a shit? Because the court was basically saying something kind of offhand almost in the 1950s, and then you build this superstructure around it. But the original opinion's not load bearing. It's not meant for every scenario. You have to just think about what makes sense here. Just think about what makes sense here. It's so fucking annoying.

Michael: Yeah. Like, reading the old opinion, it's really like you realize how much they've deconstructed it and then reconstructed it into something, like, much more formal and iterated, I guess, is one way to think about it. But it's like, yeah, there's a process, there's a test, and you follow. And it's got steps. That's not how the opinion's written, and that's not how they were working. And that's not—I don't think that's right. Like, at best it's just sort of like, here are considerations. Here are things we're thinking about. Like, has the government really demonstrated that there's secrets involved? Has the plaintiff really demonstrated they need this information?

Rhiannon: Yeah.

Michael: Like, that was what was on their minds, but it wasn't like a test. And they're trying to make it something it's not.

Rhiannon: Kagan has another concurrence here in this—you know, we haven't mentioned yet, it's a 7-2 holding, but justices are all over the place in this decision, some joining parts of some and not parts of others. It's quite crazy. So Kagan files her own opinion. She agrees with what ends up being the majority holding, that disclosure of this info, disclosure of the location of this CIA black site would violate the state secrets privilege. But she argues that basically, like, classified information and unclassified information can be separated. She says, like, you know, a lot of information about Zubaydah's treatment is unclassified. It's already out there. He can request that. He can request that that discovery be produced, and that info can be, you know, segregated from the classified information about specifically the location of this black site.

Rhiannon: So Kagan says, like, "This case, I agree that the location, that specific information being requested or demanded by Zubaydah's team, yeah, that's covered by the state secrets privilege. That can't be revealed or turned over. But this case should be remanded, basically. Sent back to the lower court. Zubaydah can renew a request, and just not request information about the location. He can request other information. It's already unclassified. It's already known." That's Kagan's basic argument. But again, joining the holding here against Zubaydah.

Michael: Before we continue, I'm just realizing there's something really pernicious about Breyer's response to this.

Rhiannon: Response to Kagan's concurrence specifically?

Michael: Yeah, to Kagan's concurrence specifically. Because he says, you know, they've asked about stuff that happened in Poland. And so even providing delocationized information will essentially confirm this site in Poland. It wouldn't, right? The only reason it would is because everybody knows the site was in Poland because it's already public.

Peter: Right.

Michael: Right? If the CIA said, "We deny this site was in Poland, but we will tell you what happened at Site Blue." That's what it was called. "We deny Site Blue was at Poland," or neither confirmed nor denied that Site Blue is Poland. "But we'll tell you what happened at Site Blue." They would still not be doing the confirmation that Breyer says is so harmful to their relationships with European intelligence agencies, right?

Rhiannon: Yes.

Michael: But he's saying, "But it actually would be." But only because everybody already knows that Site Blue was in Poland."

Rhiannon: Yes.

Michael: So he's, like, using its public knowledge against Zubaydah.

Rhiannon: The person requesting—right.

Michael: It's really fucked up, actually, like, now that I think about it. I didn't even, like, catch this when I was reading it, but it's fucked up. Like, it's fucked up. God, Breyer's such a piece of shit. He's such a piece of shit.

Peter: We'll talk about Breyer in a second.

Rhiannon: Yeah, we'll talk about Breyer in a second. You know, Gorsuch gets to some of this in the dissent, right? Like, this is a pretty solid dissent here written by Gorsuch, only joined by Sonia Sotomayor. This is a two-person dissent. And Gorsuch is just kind of hitting them with this logic. He says, "Everybody knows about this. There has been reporting. There has been already testimony by CIA officers and contractors. All of this has been revealed to the point that, like, a lot of this is straight up public knowledge—Zubaydah's treatment and the black site location being in Poland. How is this a state secret?" That is Gorsuch's dissent.

Rhiannon: And also Gorsuch, you know, talks about how, like, the role that courts typically have in reviewing on the merits whether or not a state secret or state secrets privilege is actually being, like, invoked meritoriously by the government.

Michael: Right.

Rhiannon: Gorsuch says, like, courts can do in camera review. That means that, like, evidence or testimony or whatever actually isn't, like, released publicly or produced publicly. But just the judge, just the court can look at it privately without anybody else seeing it. Just the parties in the case and the judge. The judge looks at it and decides whether or not, yeah, this is a state secret, or yeah, this would harm national security if it were to get out. This is very typical and part of what judges do when these privileges are invoked.

Rhiannon: He also says, like, wait a minute, like, Zubaydah is requesting this information. Zubaydah has submitted this discovery application under a federal law that Congress passed that gave federal courts this power to review these kinds of discovery requests. So the executive branch can't just come in and just blanket have this power to take that away from courts, to take away congress's power to delegate that to courts and give away the court's power to review this thing, and actually give a thumbs up or thumbs down on whether or not this is truly privileged state secret information.

Rhiannon: And finally, Gorsuch says, you know, this case, the holding dismisses Zubaydah's case outright. It dismisses this discovery application. Gorsuch says, we don't have to do that. You can do other things. You can order protective orders, you know, over certain evidence or testimony or what have you. There are other security procedures that courts, judges use to make sure that sensitive government information is shared in the right way only with the correct parties. You know, not publicly shared, et cetera. This is common stuff when the federal government is involved in litigation. There are so many other measures that could be taken by the court here before just outright straight up dismissal, calling this a state secret and then dismissing the case outright so Zubaydah cannot make this request differently.

Michael: Yeah, it's kind of wild. Like, again, Thomas's concurrence was going at Gorsuch a lot. He was arguing with Gorsuch a lot. One of the things he takes issues with, and I think this is essentially implied in the majority as well, is that even in camera review by a judge would itself be a national security risk. Which is fucking wild. Like, what are you talking about? Judges look at classified information all the time. Like, oh yeah, our relationship with the Polish intelligence agency is gonna be impacted because, you know, some judge in the fucking Southern District of New York knows that Site Blue was in Poland? Fuck off!

Rhiannon: Just like everybody else does right now.

Michael: Yeah. Fuck off. Like, it's such garbage. It's such garbage.

Rhiannon: Yeah. You know, there's also this question of why, like, is Gorsuch the one writing the dissent? Gorsuch, obviously a conservative, 7-2 decision, just Gorsuch and Sotomayor, you know, like, arguably one of the more liberal justices, obviously, in dissent. Them being the only two. I think Gorsuch is doing kind of something that's in line with Gorsuch's jurisprudence. It's not super surprising if you zoom out and look at how he writes about a lot of things. I don't know if it's quite like a civil libertarian streak and more just sort of like, it's a combination of, like, small government, what he thinks about, like, small government, and also a judicial supremacy thing. Like, this case and the majority opinion here, taking the judiciary, taking judicial review off the table, saying, like, the judiciary doesn't have a role in this. This is all the executive branch, basically. And Gorsuch is saying, wait a second. No, judges should be a part of this. They're a part of this routinely. And also, like, all of this bureaucratic crap. There's a certain, like, logic that Gorsuch is applying, the Gorsuch logic that, like, we know this. It's all public information. Why are we doing, you know, all of this process? Why are we taking judges out of it?

Peter: Yeah.

Rhiannon: He hates all of it, you know?

Peter: Yeah. And he has a real distrust of government bureaucracy.

Rhiannon: Yes.

Peter: Not necessarily government per se but, like, his opposition to the regulatory state kind of aligns with this in some ways. And yeah, I think he just has, like, a real ideological hatred of this sort of bureaucracy, and that includes the CIA. It's not something that necessarily excludes the CIA. And yet, like, there's a component of, like, a Scalia-style civil libertarian streak there, but that's not entirely it.

Rhiannon: Yeah.

Peter: I think he is slightly more principled on some of this stuff than a lot of the conservatives, but his principles are fundamentally insane. It's just you get a few more broken clock moments with Gorsuch.

Rhiannon: Yeah.

Peter: There was a really interesting point in here, and Gorsuch actually hit on it in oral argument where he basically said, "Well, what if Zubaydah provides his own testimony?" Right? "Could the government invoke the state secrets doctrine to prevent him from testifying?" And the government said yes.

Rhiannon: [laughs]

Peter: Which means—and, like, you know, a lot of analysts and lawyers have pointed this out—the government is saying that this man's own mind is privileged, and it's their privilege, right? That they can prevent him from providing testimony because it's their privilege. An incredibly fucked up way to think about confidentiality.

Michael: The fact of them torturing him is what makes it privileged, essentially. Because it's like, that was the program they were doing with—in cooperation with Thailand and Poland and Qatar and whoever the fuck else, right?

Peter: The government is arguing that you could not testify on your own behalf.

Rhiannon: Mm-hmm. About your memories. Because Zubaydah himself believed, had evidence, remembered things that led him to believe that he was in Poland. So he could testify himself. The government is saying, "Yes, we tortured you. We didn't tell you where you are. And in fact, your memories of all of that belong to us and are classified."

Peter: Right. Right. And yeah, I mean, it would be very easy to establish, right? If—by the way, it's not just that it's public knowledge that this was in Poland. People know what it was. People know the specific military base in Poland that it was. You could show a man pictures and be like, "What about this room? Look familiar?" You know, and hash out exactly where he was and where things happened to him. But the government says, "No. No, that's—your own memories are classified property of the United States government."

Michael: They did say that they might allow him to get precleared written testimony. Oh, I'm sure that would be just totally satisfactory. They won't abuse that preclearance at all. No. No chance.

Peter: There are a couple of, like, big picture items lurking here. And this sort of echoes what Rhi, you mentioned up top. Like, if you're a layperson, you're probably thinking, like, "Well, isn't all of this illegal? Like, isn't the CIA running black site torture facilities illegal? Doesn't torture violate the Constitution?" And the answer is, like, probably yes.

Michael: Yeah.

Peter: Torture is most certainly a constitutional violation. The way they got away with it was not arguing that torture is constitutional even in certain circumstances, really—although that's part of it. And they have sort of like—they were floating little arguments internally in the torture memos, but what they really did was make procedural arguments like this one that impede the ability of federal courts to actually hear cases about torture, right?

Rhiannon: Yeah. The procedural bar.

Peter: Right. This is the crux of the post-9/11 war-on-terror legal regime. The government wasn't really winning on substantive arguments in court; it was winning on procedural arguments that it should be able to essentially evade judicial review of its actions because these things are all the prerogative of the executive, wartime powers, foreign jurisdictions, et cetera, et cetera, right? And this is a particularly egregious example, because here you have the government invoking the state secret privilege to protect confidential information about what we all know to be an illegal torture program.

Michael: Right.

Rhiannon: Yeah.

Peter: You want to challenge the constitutionality of this program? Oops! Confidential.

Michael: Yeah.

Peter: It's just absurd. It's just patently absurd. It's like circular bullshit, and the court let them get away with it because they've built the foundation for the government to just evade review at every single level.

Michael: Yeah. Also, I mean, part of it is that, you know, we also never went after the torturers, right? Like, Obama thought it would be enough to just say we're looking forward and we'll admit that we tortured, but that's it. And I think, like—are any of you familiar with the Truth and Reconciliation Commissions in South Africa?

Peter: Yeah.

Michael: Because I feel like part of the exchange for testimony was you got immunity, but you also had to kind of leave public life. It's like, okay, you don't go to prison, but you also don't hold positions of influence anymore.

Rhiannon: Right. You're not gonna be like—you're not gonna, like, run for office. And—yeah, yeah.

Michael: And it was like Obama wanted to do that, but without the part where they are driven from public service. And that was a huge mistake. I mean, I think it was a huge mistake not to just fucking criminally prosecute all these people, but even if you were gonna try to do a truth and reconciliation approach, you can't just leave them in the CIA, in the executive branch, right? That's how you end up with the head of a torture site being the head of the CIA 20 years later. It's not just accepted, it becomes a stepping stone to something bigger.

Rhiannon: Yeah.

Michael: This case is very emblematic, I think, of the failures of the Democratic Party and the broad American public and liberal elites and whoever to reckon with the excesses of the war on terror, and to allow the country to just stay in a state of emergency for legal and political purposes for two decades.

Rhiannon: Yeah.

Michael: And now here we are. The two areas where the executive has been allowed to run wild has been national security for the last 25 years, and immigration for the last 70 years, at least. And whoa, what do you know? We're now in the middle of a fucking constitutional crisis where the executive branch is using national security and immigration to destroy the constitutional order.

Rhiannon: Yeah, exactly. In Zubaydah's own recollection, he recalls a time early in his detainment when there was maybe about a month where his torturers were not around, and he was just—quote-unquote "just"—chained to a bed, eating, like, a small plate of rice every day. And reporting and investigation and all of this kind of thing later revealed that that time during which he wasn't sort of like actively being tortured by these CIA operatives, coincided with a time in which leadership of the CIA was at the White House, was in close communication, was lobbying the Bush administration to assure them that nobody who was torturing at these CIA black sites would ever be prosecuted.

Peter: And I guess on the point of the failures to reckon with the war on terror jurisprudence, we've talked about this before. We've talked about this exact exchange before, but there was an exchange at oral argument between Breyer and Zubaydah's attorney where he basically asked the attorney why Zubaydah couldn't testify on his own behalf. And the attorney's like ...

[ARCHIVE CLIP, Supreme Court: Abu Zubaydah cannot testify.]

[ARCHIVE CLIP, Supreme Court: Why not?]

[ARCHIVE CLIP, Supreme Court: Because he is being held incommunicado. He has been held in Guantanamo.]

Peter: And the reality of Zubaydah at this point is that he filed a habeas petition in 2008, because back in the mid-aughts, the Supreme Court said, "Hey, you can—you guys can file habeas petitions. Everyone's got that right." And then 14 years passed where a federal judge did not do anything.

[ARCHIVE CLIP, Supreme Court: Have you filed a habeas or something to get him out?]

[ARCHIVE CLIP, Supreme Court: There's been a habeas proceeding pending in DC for the last 14 years. There's been no action.]

[ARCHIVE CLIP, Supreme Court: They don't decide?]

[ARCHIVE CLIP, Supreme Court: I'm sorry?]

[ARCHIVE CLIP, Supreme Court: I mean, you just let it sit there. All right, I guess this is not relevant, but I'm just curious.]

[ARCHIVE CLIP, Supreme Court: Personally, I'm not handling that proceeding. But no, my understanding is that we've done everything we could to move it forward, but it simply has not moved forward.]

Rhiannon: So this is Stephen Breyer in oral argument, completely showing his ass. First of all, going on a tangent, not asking David Klein, Zubaydah's lawyer, information—questions relevant to the case, but going off on this tangent, like, attacking David Klein, saying Zubaydah's lawyers haven't fought for him well enough. Why aren't they doing habeas proceedings? When they are, and revealing that Justice Stephen Breyer does not know how habeas proceedings, how being held incommunicado at Guantanamo, how all of these things actually work for the case that's in front of him.

Peter: Right. How they work in the real world.

Rhiannon: Yes!

Peter: The federal judge that the habeas petition sat before retired in, like, 2016, having not touched the petition. And it was assigned to another judge. And here's Stephen Breyer's dumb ass being like, "Why can't he testify?" Because you signed off on a fucking, like, unconstitutional detention program and a network of offshore torture facilities. That's fucking why, you absolute moron.

Rhiannon: Yeah.

Michael: Yeah. Like, we were just talking about this, I think, in the last episode. That case I was so angry about, Kiyemba v. Obama, was a habeas petition out of Guantanamo. And a judge was like, "Yeah, you have to release them into the United States if you can't find another country to take them." And then they were like, "No." Like, the fucking DC Circuit was like, "No, you can't make the United States allow someone in their border because they're not currently in the territorial jurisdiction of the United States." Like, in one sense, I'm not sympathetic to the judge, but I get it. What are you gonna do? Even if you want to order his release, you can't. You literally cannot order his release. Like, the one remedy that habeas demands has been taken off the table. So what the fuck? Like, what is even the point of habeas if you can't order release from Guantanamo Bay?

Rhiannon: And just a reminder for listeners, we talked about this a couple episodes back, but habeas is challenging your detention, challenging your literal imprisonment on the basis that it is unconstitutional.

Michael: Oh, and by the way, guys, do you know what the logic was, why the DC Circuit said you can't order release into the United States under habeas?

Rhiannon: Why?

Michael: Because immigration is part of the sovereign powers of the elected branch's.

Rhiannon: Executive. Great.

Peter: Yeah. It's sort of like immigrating.

Michael: And they get to decide who does and does not enter the border.

Rhiannon: Great.

Peter: Nice. So, you know, to sort of pivot away from this case and the war on terror stuff. More recently, we've seen the Trump administration invoke the state secrets doctrine to prevent the disclosure of information about what exactly is going on in El Salvador. What is our agreement with the government of El Salvador? What's going on behind the scenes? How much access do we have? Is our government managing things on the ground at all over there? We don't know. And right now, the Trump administration is invoking the state secrets doctrine. It's foreign policy stuff, right? It's foreign policy secret. Now should the Trump administration be able to completely insulate itself from liability and review by invoking the state secrets doctrine? I don't know, but it has worked for every administration in American history so far. So maybe.

Rhiannon: Yeah.

Peter: Maybe they should be allowed. It does feel like what they're doing is the natural extension of the regime, the legal regiment that Breyer has signed on to, right?

Rhiannon: Yeah. Yeah.

Peter: I don't know how you can claim that the CIA's, like, really abstract interest in maintaining its relationships with foreign intelligence agencies, even though everyone already knows the state secret involved is, like, a more serious concern than, like, whatever the Trump administration claims is its relationship with El Salvador.

Rhiannon: Right.

Peter: And this is the result of a court that never took seriously the idea that the government can't really be trusted.

Rhiannon: Yeah. And I think it's really important that we're emphasizing here, like, Breyer's moronic, you know, majority opinion, the moronic questions that he's asking during oral argument that reveal that he doesn't understand this at all. Just complete credulousness. It's important, I think, that we're highlighting Breyer's role here, because it's important for everybody to understand that the liberal justices, the liberal federal judges contributed just as much as conservative justices on the Supreme Court to the making of this legal infrastructure, to the making of the status quo. That is the foundation on which a Trump administration, a fascistic administration, is pushing the boundaries even more.

Peter: Mm-hmm. The strategy of the Trump administration right now, in really broad terms, is to, like, reach back into times of conflict in American history and yank out these legal doctrines, right? You reach back to the pseudo war with the French, Alien Enemies Act from the 1790s.

Rhiannon: Yeah.

Peter: Reach back to World War II. Pull out some of that precedent, right? The most unsettling part is that most of the precedent they need for shit like this comes from the last 20 years.

Michael: Yeah.

Peter: Most of the precedent they need for just, like, maintaining the sort of machinations of an authoritarian state were precedents that were created in the post-9/11 milieu. Like, that is more than any other, like, set of cases, the war on terror cases are something that the Trump DOJ is relying heavily on right now. And I mean, it's just—this is one of those things that, like, you learn when you're a little child, like, why are rights important, you know?

Rhiannon: [laughs] What does freedom mean?

Peter: You might like the president right now, and so you might think you want him to have more authority, but what if the next guy isn't as nice? Right? And you're, like, 14 years old and you're like, "Yeah."

Michael: Yeah. You gotta think a step ahead.

Rhiannon: Uh huh. Yeah.

Peter: That's the importance of having a baseline of civil protections. Great. Makes total sense. Never actually processed for Stephen Breyer. Never actually processed for the majority of the Supreme Court.

Rhiannon: Yeah. 7-2. Gorsuch and Sotomayor in dissent.

Michael: Yeah. I mean, I think you can argue it's never even processed for fucking Barack Obama, right?

Rhiannon: Yes.

Peter: Oh, definitely.

Michael: I mean, the failure of the liberals is not confined to the Supreme Court.

Rhiannon: Right.

Michael: It's the entire liberal establishment.

Rhiannon: Yeah.

Michael: And it's not just not prosecuting torturers, and not even getting them out of government. It was also, you know, not getting rid of warrantless wiretapping. It was accepting the authors of the torture memo and the warrantless wiretapping right back into polite society as experts, right? A lot of people really liked the guy who wrote the warrantless wiretapping memo, Jack Goldsmith, because he resigned at the torture memo. That was his line. As if the warrantless wiretapping, mass surveillance of American citizens, that's no big deal. It was the drone warfare, it was the surveillance state. It's all this shit.

Rhiannon: Yeah.

Peter: Yeah. We built a world where the Trump administration is disappearing people to El Salvador, and a normal person would say, "I would like to know what they're doing there. I would like to know what's going on." And the Trump administration gets to credibly claim that you don't have that right.

Michael: Yeah.

Peter: And it's a credible claim because Stephen Breyer made it a credible claim, right? It's just so fucking frustrating. And I'm not one of these people that's like, Donald Trump was always the next step in American society, or that he's the natural output of American government or politics.

Rhiannon: No, it's not an inevitability.

Michael: Yeah.

Rhiannon: No.

Peter: He wasn't an inevitability.

Rhiannon: Right.

Peter: And I do think he's an anomaly. But the way you prevent an anomaly like Donald Trump is by putting up fucking barriers.

Michael: Yes.

Rhiannon: Yeah. And instead, they built the anomaly brick by brick.

Peter: All right, folks. Next week, Hazelwood School District v. Kuhlmeier. This is a case about student free speech. We thought some more free speech cases might be topical.

Rhiannon: It's relevant.

Peter: In times like these.

Rhiannon: It's prescient. It's germane, even.

Peter: Follow us on social media @fivefourpod, subscribe to our Patreon, Patreon.com/fivefourpod—all spelled out—for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. We'll see you next week.

Rhiannon: Bye!

Michael: Bye, everybody. 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy, our artwork is by Teddy Blanks at CHIPS.NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community and more, join at Patreon.com/fivefourpod.

Michael: Sorry, now I just want to rant about January 6 ...

Rhiannon: [laughs]

Peter: That's when you know we need to wrap the episode.

Rhiannon: Yeah.