Pod Insights 5-4 United States v. Zubaydah About this episode Following the 9/11 attacks, both liberal and conservative justices contributed to the rise of some authoritarian powers that the Trump administration is now wielding today.
ERRATA: Henry Blodget is no longer the CEO of Business Insider.
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Transcript Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.
0:00 Speaker 00 We will hear argument in case 2827, United States versus Zubaydah.
0:10 Speaker 01 Hey, everyone. This is Leon from Prologue Projects. On this episode of Five to Four, Peter, Rhiannon, and Michael are talking about United States v. Zubaydah, a case from 2022 that centers around what the government considers "state secrets."
0:26 Speaker 02 If everyone knows about a secret, then it's not a secret, right? 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.
0:44 Speaker 01 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.
1:27 Speaker 01 This is Five to Four, a podcast about how much the Supreme Court sucks.
1:36 Peter Shamshiri? Welcome to Five to Four, 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. Hey, everybody. And Rhiannon.
1:49 Speaker 04 Hello. It's expensive.
1:52 Peter Shamshiri? Yeah, recently reported that the niceties that people use when interacting with the robots at ChatGPT.
2:03 Peter Shamshiri? 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.
2:20 Michael Liroff? It's incredible.
2:21 Peter Shamshiri? It's the future, baby.
2:22 Michael Liroff? Yeah.
2:23 Speaker 04 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.
2:35 Peter Shamshiri? I do think it's brought us some beautiful stories.
2:38 Michael Liroff? Right. I was gonna say, human interest stories.
2:41 Peter Shamshiri? Stories of human connection. Ree, I know that you hadn't heard about this, but Henry Blodget, the CEO of Business Insider, one of the bottom tier publications on the internet.
2:54 Speaker 04 Yeah, toilet paper publication.
2:57 Peter Shamshiri? They put together like an AI colleague.
3:00 Michael Liroff? So named Tess, Tess?
3:02 Peter Shamshiri? Yeah, Tess. Name's Tess. They use ChatGPT.
3:06 Speaker 04 Like an employee that's like AI person? Okay.
3:10 Peter Shamshiri? Right.
3:11 Michael Liroff? To grow social media platforms, digital platforms.
3:15 Peter Shamshiri? 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, a good looking, middle aged woman, right?
3:28 Speaker 04 Okay.
3:29 Peter Shamshiri? And he says, and this led to an interesting end for me, regrettable moment. When I saw Tess's headshot amid the giddiness and excitement of that first hour of working together.
3:39 Speaker 04 Oh, no.
3:39 Peter Shamshiri? I confess that I had a, well, human response to it, one that as a human, I wanted to share with Tess.
3:46 Speaker 04 What the fuck?
3:51 Peter Shamshiri? 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.
4:05 Speaker 04 To the AI.
4:06 Michael Liroff? To the AI.
4:06 Speaker 04 Employee.
4:07 Peter Shamshiri? Sending that.
4:08 Speaker 04 To the fake headshot.
4:09 Peter Shamshiri? To the AI, which again.
4:12 Michael Liroff? To the fake headshot.
4:13 Peter Shamshiri? Is not a person.
4:14 Speaker 04 Right. Tess, I'm bricked up.
4:17 Peter Shamshiri? Osidando nevo. 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 hedge out of itself, it does. He sexually harasses it immediately."
4:35 Michael Liroff? So good. It's so good.
4:40 Speaker 04 Oh my god.
4:43 Peter Shamshiri? Oh, Jesus Christ. All right. Today's case, United States v. Zubeta. This is a case from just a few years ago about state secrets. Keeping secrets, something that perhaps Henry Blodget could learn about.
4:59 Peter Shamshiri? Shortly after 9/11, Abu Zubeta 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. 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..."
5:32 Michael Liroff? It's a secret.
5:33 Speaker 04 It's a secret.
5:34 Michael Liroff? Shhh.
5:37 Speaker 04 You cross your heart and hope to die.
5:39 Michael Liroff? Yeah.
5:40 Peter Shamshiri? I pinky promised. I pinky promised the president I wouldn't say anything.
5:46 Speaker 04 God.
5:47 Peter Shamshiri? The Supreme Court, in a 7 to 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.
6:13 Peter Shamshiri? Ree, hand it off to you for the background here.
6:16 Speaker 04 Yeah, you know, let's start with a day, a date, maybe some recall, September 11th, 2001. Wow. Surely, we've talked about 9/11 on this damn podcast before. I was in 8th grade. Peter, you're in high school.
6:31 Peter Shamshiri? That's right.
6:31 Speaker 04 Michael, were you a freshman in college?
6:34 Michael Liroff? Yeah, I was literally in the mountains on like our introductory freshman hiking trip.
6:41 Speaker 04 Nice, nice. All right. Yeah. So that was September 11th. That's what happened on September 11th. Michael was in the woods. So fast forward several months after September 11th, 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,
7:23 Speaker 04 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.
7:45 Peter Shamshiri? Good show.
7:46 Speaker 04 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?
8:17 Michael Liroff? You would think.
8:18 Speaker 04 Well, actually, just days before Abu Zubaydah was captured.
8:22 Peter Shamshiri? Isn't there someone you forgot to ask? John, you?
8:25 Speaker 04 Right, right, right, right. You silly goose, you didn't remember that John Yu is a guy? Because just days before Abu Zubaydah was captured, John Yu had authored a memo and 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. 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?
9:05 Speaker 04 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. But back to Abu Zubaydah. He was in Thailand for a time. And then in December of 2002,
9:49 Speaker 04 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. 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
10:35 Speaker 04 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.
11:04 Michael Liroff? Yeah, they said he, at his longest, they believe he stayed, he was kept awake for 126 hours, which is just
11:12 Speaker 04 Yeah.
11:12 Michael Liroff? 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 you just go into a fugue state. It's fucking insane.
11:26 Speaker 04 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. And so, you know, these details horrific as they are, they came out in 2019 to, you know, sort of like the wider public. But when Zubeda 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
12:09 Speaker 04 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. 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
12:45 Speaker 04 Person to provide testimony or documents for use in like a foreign criminal investigation or a foreign tribunal. Specifically Zubeta was requesting that two CIA contractors who had designed the torture program and who had carried out that torture program on Zubeta 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. Zubeta's legal team requesting information, requesting testimony from Zubeta's torturers and the US government saying, no, that's a secret.
13:24 Peter Shamshiri? 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, 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.
14:05 Peter Shamshiri? So here Zubeta 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. So.
14:36 Peter Shamshiri? 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.
14:49 Speaker 04 Yes.
14:49 Peter Shamshiri? 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.
15:33 Peter Shamshiri? But is it speculation? Because a European court confirmed the sites. Gorsuch mentions that the first time a European court confirmed the sites was like 2007.
15:46 Speaker 04 Yeah.
15:47 Peter Shamshiri? 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.
16:04 Speaker 04 Right.
16:05 Peter Shamshiri? 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.
16:20 Speaker 04 Right.
16:22 Peter Shamshiri? This is such a weird way to talk about it, and it's not something...
16:28 Peter Shamshiri? 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. Uh, in any case that I'm aware of. And like, of course, it doesn't, it doesn't make any fucking sense.
16:42 Speaker 04 Yeah.
16:42 Peter Shamshiri? 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.
16:54 Speaker 04 Yeah.
16:55 Michael Liroff? Yes.
16:55 Speaker 04 Torturing people at CIA black sites.
16:57 Michael Liroff? The Senate did a whole 600-page report on torture that talks explicitly about Zubeta's being tortured in Thailand. The only thing missing was what happened to him in Poland, right? Like, this is like-
17:12 Peter Shamshiri? And acknowledges the existence of black sites.
17:14 Michael Liroff? Yes.
17:14 Speaker 04 Yes.
17:14 Peter Shamshiri? They're just like, well, other agencies wouldn't trust us. And it's like, why? Because, 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.
17:37 Michael Liroff? 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. An 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 isn't just embarrassing for the government.
18:16 Michael Liroff? It's embarrassing for the director or deputy director of the CIA, like, personally, individually.
18:24 Peter Shamshiri? 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 Zubeta's alleged terrorist activities, nor of his treatment at the hands of the United States government. Obviously, the court condones neither terrorism nor torture."
18:45 Peter Shamshiri? But in this case, we are required to decide only a narrow evidentiary dispute.
18:50 Michael Liroff? Hmm.
18:51 Speaker 04 Classic.
18:51 Peter Shamshiri? 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.
19:01 Michael Liroff? Right.
19:01 Speaker 04 Pero, I have a butt.
19:04 Peter Shamshiri? You're gonna think based on what we say next that we do condone terrorism or torture.
19:09 Michael Liroff? One of those two at least. Yeah.
19:11 Peter Shamshiri? But.
19:11 Michael Liroff? If not both, but yeah.
19:13 Peter Shamshiri? 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.
19:26 Michael Liroff? Hmm.
19:27 Peter Shamshiri? For the record, so it's very well established that this guy was not high level Al Qaeda. That's something like the government has admitted is 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.
19:47 Speaker 04 And again, he is still today at Guantanamo with no charges.
19:52 Peter Shamshiri? Right, right.
19:54 Michael Liroff? 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 like 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's secrets involved,
20:37 Michael Liroff? 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.
20:48 Michael Liroff? It's so stupid.
20:49 Peter Shamshiri? Yeah, but it gives him an excuse to say that he doesn't actually need this information.
20:53 Michael Liroff? Yes, I read the case, by the way, I went, I read the 50s case. Thomas definitely has the better reading of it. His order is correct. I think the confusion is that they 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. I don't think it matters because I think that test is stupid and misapplied here. I I'm going to 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.
21:37 Speaker 04 Yeah.
21:37 Michael Liroff? 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
22:08 Speaker 04 Yeah.
22:08 Michael Liroff? in the middle of a hot war.
22:10 Peter Shamshiri? And a decade off the largest war in human history.
22:14 Michael Liroff? Right. With, 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. How is that even in the same fucking ballpark?
22:36 Speaker 04 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.
22:45 Michael Liroff? Yeah.
22:46 Peter Shamshiri? 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, we're 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.
23:11 Michael Liroff? Of course, of course.
23:12 Speaker 04 And we knew that by the time this case is coming up, you know?
23:17 Michael Liroff? 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 like, 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
23:57 Michael Liroff? in the middle of a hot war in Korea right now. I think it's apt, actually. Like, it's, they're clearly like, not analogous at all. And yet, our law and our politics have acted like their equivalent. 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, like, 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
24:40 Michael Liroff? 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."
24:54 Michael Liroff? 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 judge, your judgment is supposed to be like your thing, of course.
25:08 Speaker 04 Adjudication is kind of what you do. Yeah.
25:10 Michael Liroff? It's like, our judge, oh, bum, bum, bum, judges. Oh, yeah. 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 like whatever the fuck it wants. Right? Like, yeah. Dude, he calls Zubeta an alleged quote unquote survivor of CIA interrogation.
25:44 Peter Shamshiri? What does that even mean?
25:45 Speaker 04 Like, he's trying to be like sarcastic, like he's trying to like demean like, oh, you're calling him a survivor. But like, actually, he's a disgusting terrorist, but on the facts, he survived torture. So he actually is a survivor of torture.
25:58 Peter Shamshiri? 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, he's just like trying to do a mean voice in the, in the Supreme Court reporter.
26:15 Michael Liroff? 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. Like, just shut up. Shut the fuck up. What are you doing?
26:44 Peter Shamshiri? He loves to concur. You gotta let him go, you know? He's a chatty boy. He wants to talk.
26:49 Michael Liroff? Oh, God, I'm so, I was so angry reading it.
26:53 Peter Shamshiri? 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, then necessity, then secrets again. A little secret sandwich.
27:07 Michael Liroff? There's like, there's like so much contempt in Thomas's concurrence describing this where he's like Kavanaugh's Reynolds step zero. And like, I can just hear the disdain, you know, like, he's just like, what are you talking about, dude? And yeah, rightfully so. So stupid.
27:23 Peter Shamshiri? 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 that like these justices are trying to like parse this thing. And it's just like, who gives a shit? Who get, who gives a shit? Because the court was basically saying something kind of offhand almost in the 1950s. And then you build this like superstructure around it. But the original opinion is not load bearing. It's not meant for every scenario. You have to like, just think about what makes sense here.
28:08 Peter Shamshiri? Just think about what makes sense here. It's, it's, it's so fucking annoying.
28:12 Michael Liroff? Yeah, yeah, like reading the old opinion, it's really like, you realize how much they've like deconstructed it and then reconstructed it into something like much more formal and like 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, here are things we're thinking about. Like, has the government really demonstrated that there are secrets involved? Has the plaintiff really demonstrated they need this information? Yeah. Like, that was what was on their minds, but that wasn't like, it wasn't like a test. And they're trying to make it something it's not.
28:56 Speaker 04 Kagan has another concurrence here in this, you know, we haven't mentioned yet. The seven to holding.
29:04 Michael Liroff? Yeah.
29:05 Speaker 04 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 Zubeta'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,
29:46 Speaker 04 segregated from the classified information about specifically the location, right? Of this black site. So Kagan says like this case, I agree that the location, that specific information being requested or demanded by Zubeta'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. Zubeta 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.
30:22 Michael Liroff? Yeah.
30:22 Speaker 04 That's Kagan's basic argument. But again, joining the holding here against Zubeta.
30:26 Michael Liroff? Before we continue. I'm just realizing there's something really pernicious about Breyer's response to this.
30:34 Speaker 04 Response to Kagan's concurrent specifically?
30:36 Michael Liroff? Yeah, to Kagan's concurrent specifically because he says, you know, they've asked about stuff that happened in Poland. And so even providing the locationized information will essentially confirm this site in Poland. It wouldn't, right? It, the only reason it would is because everybody knows the site was in Poland, because it's already public.
31:01 Speaker 04 Right.
31:02 Michael Liroff? Right? Like 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 or deny 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? But he's saying, but it actually would be, but it only because everybody already knows that Site Blue was in Poland.
31:35 Speaker 04 Yes.
31:36 Michael Liroff? So he's like using its public knowledge against Zubeta.
31:43 Speaker 04 The person requesting, right?
31:45 Peter Shamshiri? Right.
31:46 Michael Liroff? It's really fucked up, actually. Like, now that I think about, 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.
31:58 Peter Shamshiri? We'll talk about Breyer in a second.
32:00 Speaker 04 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. Zubeta's treatment and the Black Site location being in Poland. How is this a state secret?" That is Gorsuch's dissent.
32:44 Speaker 04 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 secret's privilege is actually being, like, invoked meritoriously by the government. 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.
33:29 Speaker 04 This is very typical and part of what judges do when these privileges are invoked. He also says, like, wait a minute, like Zubeta is requesting this information. Zubeta 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 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
34:13 Speaker 04 or thumbs down on whether or not this is truly privileged state secret information. And finally Gorsuch says, you know, this case, the holding dismisses Zubeta'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.
34:56 Speaker 04 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 Zubeta has, you know, cannot make this request differently.
35:12 Michael Liroff? 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
35:33 Speaker 04 Yeah.
35:34 Michael Liroff? fucking wild. Like, what are you talking about? Like, 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.
35:56 Speaker 04 Just like everybody else does right now?
35:58 Michael Liroff? Yeah. Fuck off. Like, it's such garbage. It's such garbage.
36:05 Speaker 04 Yeah, you know, there's also this question of like, why is Gorsuch the one writing the dissent? Gorsuch, obviously a conservative, 7-2 decision, just Gorsuch and Sotomayor, you know, arguably like 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
36:49 Michael Liroff? Yeah.
36:49 Speaker 04 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?
37:23 Peter Shamshiri? Yeah.
37:23 Speaker 04 He hates all of it, you know?
37:25 Peter Shamshiri? Yeah, and he has a real distrust of government bureaucracy.
37:29 Speaker 04 Yes.
37:29 Peter Shamshiri? 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.
37:51 Speaker 04 Yeah.
37:52 Peter Shamshiri? 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.
38:05 Speaker 04 Yeah.
38:05 Peter Shamshiri? 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, 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
38:38 Michael Liroff? Yes.
38:39 Peter Shamshiri? 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.
38:52 Michael Liroff? The fact of them torturing him is what makes it privileged, essentially. Because it's like, that was the program they were doing within cooperation with Thailand and Poland and Qatar and whoever the fuck else, right?
39:06 Peter Shamshiri? The government is arguing that you could not testify on your own behalf.
39:11 Speaker 04 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."
39:29 Peter Shamshiri? 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, was it, 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.
39:57 Michael Liroff? They did say that they might allow him to get pre-cleared written testimony. Oh, I'm sure that would be just totally satisfactory. They won't abuse that preclearance at all. No, no chance.
40:10 Peter Shamshiri? There are a couple of like, big picture items lurking here. And this sort of echoes what Ree you mentioned up top. But 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. Torture is most certainly a constitutional violation. The way they got away with it was not arguing that torture is constitutional, even in like, 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.
40:50 Peter Shamshiri? 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?
41:04 Speaker 04 Yeah. It's a procedural bar.
41:07 Peter Shamshiri? 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.
41:43 Michael Liroff? Right.
41:44 Speaker 04 Yeah.
41:44 Peter Shamshiri? You want to challenge the constitutionality of this program? Oops, confidential.
41:49 Michael Liroff? Yeah.
41:50 Peter Shamshiri? It's just absurd. It's just patently absurd. It's like circular bullshit and the court lets them get away with it because they've built the foundation for the government to just evade review at every single level.
42:04 Michael Liroff? 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 there of you familiar with the truth and reconciliation commissions in South Africa?
42:26 Peter Shamshiri? Yeah.
42:27 Speaker 04 Yes.
42:27 Peter Shamshiri? Yeah.
42:27 Michael Liroff? Because I feel like part of the exchange for testimony was you got like 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.
42:39 Speaker 04 Right. You're not going to be like, you're not going to like run for office and like, yeah, yeah.
42:44 Michael Liroff? 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 going to 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.
43:19 Speaker 04 Yeah.
43:19 Michael Liroff? This case is very emblematic, I think, of the failures of the Democratic Party and the broad American public.
43:29 Michael Liroff? 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.
43:44 Speaker 04 Yeah.
43:44 Michael Liroff? 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.
44:12 Speaker 04 Yeah, exactly. In Zubeta's own recollection, he recalls a time early in his detainment when there was a, 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 an 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.
44:55 Peter Shamshiri? 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 Zubeta's attorney where he basically asked the attorney why Zubeta couldn't testify on his own behalf. And the attorney's like.
45:25 Speaker 06 Abu Zubeta cannot testify.
45:27 Michael Liroff? Why not?
45:28 Speaker 06 Because he is being held incommunicado, he has been held in Guantanamo.
45:34 Peter Shamshiri? And the reality of Zubeta 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.
45:56 Speaker 07 Have you filed a habeas or something? Get him out?
45:59 Speaker 06 There's been a habeas proceeding pending in DC for the last 14 years.
46:03 Speaker 07 Well, how, don't they decide?
46:05 Speaker 06 There's been no action.
46:06 Speaker 07 They don't decide?
46:07 Speaker 06 I'm sorry?
46:08 Speaker 07 I mean, you just let it sit there? All right. I guess this is not relevant, but I'm just curious.
46:12 Speaker 06 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.
46:21 Speaker 04 So this is Stephen Breyer in oral argument, completely showing his ass. First of all, going on a tangent, not asking David Klein, Zubeta's lawyer, information, questions relevant to the case, but going off on this tangent, like attacking David Klein, saying Zubeta'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 that 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.
46:54 Peter Shamshiri? Right. How they work in the real world.
46:56 Speaker 04 Yes.
46:57 Peter Shamshiri? 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
47:15 Speaker 04 Right.
47:16 Peter Shamshiri? on a fucking like unconstitutional detention program and a network of offshore torture facilities. That's fucking why. You absolute moron.
47:28 Speaker 04 Yeah.
47:29 Michael Liroff? Yeah. Like, we were just talking about this, I think, in the last episode. That case I was so angry about, Chiemba 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, like 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 like, what are you going to do? Even if you want to order his release, you can't, you literally cannot order his release. Like,
48:08 Michael Liroff? the one remedy that habeas demands has been taken off the table. So what the fuck? Like, what is, what is even the point of habeas? If you can't order release from Guantanamo?
48:21 Speaker 04 And just a reminder for listeners, we talked about this a couple of episodes back, but habeas is challenging your detention, challenging your literal imprisonment on the basis that it is unconstitutional.
48:32 Michael Liroff? Oh, and by the way, guys, you know what the logic was, why the DC Circuit said you can't order release into the United States under habeas?
48:39 Speaker 04 Why?
48:40 Michael Liroff? Because immigration is part of the sovereign powers of the elected branches.
48:45 Speaker 04 Executive. Great.
48:47 Peter Shamshiri? Yeah, it's sort of like immigrating.
48:48 Michael Liroff? And they get to decide who does and does not enter the border.
48:53 Speaker 04 Great.
48:53 Peter Shamshiri? Nice. So, you know, to sort of pivot away from this case on 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 a foreign policy
49:34 Peter Shamshiri? secrets. Now, should the Trump administration be able to completely insulate itself from liability and review by invoking the state secrets doctrine?
49:50 Peter Shamshiri? I don't know, but it has worked for every administration in American history so far.
49:55 Speaker 04 Yeah.
49:55 Peter Shamshiri? So maybe, maybe they should be allowed. It does feel like what they're doing is the natural extension of the regime, the legal regime that Breyer has signed on to, right?
50:10 Speaker 04 Yeah.
50:11 Peter Shamshiri? 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.
50:38 Speaker 04 Right.
50:38 Peter Shamshiri? And this is the result of a court that never took seriously the idea that the government can't really be trusted.
50:46 Speaker 04 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, that 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.
51:31 Peter Shamshiri? 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.
51:49 Peter Shamshiri? Alien Enemies Act from the 1790s.
51:51 Speaker 04 Yeah.
51:52 Peter Shamshiri? 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.
52:04 Michael Liroff? Yeah.
52:04 Peter Shamshiri? 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?
52:42 Speaker 04 What does freedom mean?
52:44 Peter Shamshiri? 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.
52:58 Michael Liroff? Yeah. You gotta think a step ahead.
53:01 Speaker 04 Uh huh.
53:02 Peter Shamshiri? Yeah, 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.
53:18 Speaker 04 Yeah. 7-2 Gorsuch and Sotomayor in dissent.
53:21 Michael Liroff? Yeah. I mean, I think you can argue it never even processed for fucking Barack Obama, right?
53:26 Speaker 04 Yes.
53:27 Peter Shamshiri? Oh, definitely.
53:30 Michael Liroff? Like, well, I mean, the failure of the liberals is not confined to the Supreme Court.
53:34 Speaker 04 Right, right.
53:35 Michael Liroff? It's the entire liberal establishment.
53:38 Speaker 04 Yeah.
53:38 Michael Liroff? 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 surveillance state, it's all this shit.
54:18 Speaker 04 Yeah.
54:18 Peter Shamshiri? 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.
54:27 Michael Liroff? Yeah.
54:28 Peter Shamshiri? I would like to know what's going on. And the Trump administration gets to credibly claim that you don't have that right.
54:35 Michael Liroff? Yeah.
54:36 Peter Shamshiri? 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 like always the next step in American society, like, or that he's the natural output of American government or politics.
54:55 Speaker 04 No, it's not an inevitability.
54:57 Michael Liroff? Yeah.
54:57 Speaker 04 No.
54:58 Peter Shamshiri? He wasn't an inevitability. And I do think he's an anomaly, but the way you prevent an anomaly like Donald Trump is by putting up fucking barriers.
55:08 Michael Liroff? Yes.
55:08 Speaker 04 Yeah, and instead they built the anomaly, brick by brick.
55:17 Peter Shamshiri? All right, folks, next week, Hazelwood School District v. Colmeyer. This is a case about student free speech. We thought some more free speech cases might be topical.
55:28 Speaker 04 It's relevant.
55:29 Peter Shamshiri? In times like these.
55:30 Speaker 04 It's prescient, it's germane even.
55:33 Peter Shamshiri? Follow us on social media at 54pod, subscribe to our Patreon, patreon.com/54pod, 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.
55:48 Speaker 04 Bye.
55:49 Michael Liroff? Bye, everybody.
56:03 Michael Liroff? Five to Four is presented by Prolog Projects. This episode was produced by Dustin DeSoto. Leon Neefac 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/fivepod. Sorry, now I just want to rant about January 6th.
56:41 Peter Shamshiri? That's when you know we need to wrap the episode.
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