United States v. Zubaydah

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. If you're not a 5-4 Premium member, you're not hearing every episode! To hear this and other Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support http://fivefourpod.com/support. 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our researcher is Jonathan DeBruin, and our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Hosted on Acast. See acast.com/privacy https://acast.com/privacy for more information. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

  We will hear argument in case 2827, United States versus Zubaydah.

• 0:10Speaker 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."

• 0:26Speaker 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.

• 0:44Speaker 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.

• 1:27Speaker 01

  This is Five to Four, a podcast about how much the Supreme Court sucks.

• 1:36Peter 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.

• 1:49Speaker 04

  Hello. It's expensive.

• 1:52Peter Shamshiri?

  Yeah, recently reported that the niceties that people use when interacting with the robots at ChatGPT.

• 2:03Peter 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.

• 2:20Michael Liroff?

  It's incredible.

• 2:21Peter Shamshiri?

  It's the future, baby.

• 2:22Michael Liroff?

  Yeah.

• 2:23Speaker 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.

• 2:35Peter Shamshiri?

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

• 2:38Michael Liroff?

  Right. I was gonna say, human interest stories.

• 2:41Peter 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.

• 2:54Speaker 04

  Yeah, toilet paper publication.

• 2:57Peter Shamshiri?

  They put together like an AI colleague.

• 3:00Michael Liroff?

  So named Tess, Tess?

• 3:02Peter Shamshiri?

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

• 3:06Speaker 04

  Like an employee that's like AI person? Okay.

• 3:10Peter Shamshiri?

  Right.

• 3:11Michael Liroff?

  To grow social media platforms, digital platforms.

• 3:15Peter 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?

• 3:28Speaker 04

  Okay.

• 3:29Peter 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.

• 3:39Speaker 04

  Oh, no.

• 3:39Peter Shamshiri?

  I confess that I had a, well, human response to it, one that as a human, I wanted to share with Tess.

• 3:46Speaker 04

  What the fuck?

• 3:51Peter 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.

• 4:05Speaker 04

  To the AI.

• 4:06Michael Liroff?

  To the AI.

• 4:06Speaker 04

  Employee.

• 4:07Peter Shamshiri?

  Sending that.

• 4:08Speaker 04

  To the fake headshot.

• 4:09Peter Shamshiri?

  To the AI, which again.

• 4:12Michael Liroff?

  To the fake headshot.

• 4:13Peter Shamshiri?

  Is not a person.

• 4:14Speaker 04

  Right. Tess, I'm bricked up.

• 4:17Peter 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."

• 4:35Michael Liroff?

  So good. It's so good.

• 4:40Speaker 04

  Oh my god.

• 4:43Peter 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.

• 4:59Peter 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..."

• 5:32Michael Liroff?

  It's a secret.

• 5:33Speaker 04

  It's a secret.

• 5:34Michael Liroff?

  Shhh.

• 5:37Speaker 04

  You cross your heart and hope to die.

• 5:39Michael Liroff?

  Yeah.

• 5:40Peter Shamshiri?

  I pinky promised. I pinky promised the president I wouldn't say anything.

• 5:46Speaker 04

  God.

• 5:47Peter 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.

• 6:13Peter Shamshiri?

  Ree, hand it off to you for the background here.

• 6:16Speaker 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.

• 6:31Peter Shamshiri?

  That's right.

• 6:31Speaker 04

  Michael, were you a freshman in college?

• 6:34Michael Liroff?

  Yeah, I was literally in the mountains on like our introductory freshman hiking trip.

• 6:41Speaker 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,

• 7:23Speaker 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.

• 7:45Peter Shamshiri?

  Good show.

• 7:46Speaker 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?

• 8:17Michael Liroff?

  You would think.

• 8:18Speaker 04

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

• 8:22Peter Shamshiri?

  Isn't there someone you forgot to ask? John, you?

• 8:25Speaker 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?

• 9:05Speaker 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,

• 9:49Speaker 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

• 10:35Speaker 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.

• 11:04Michael Liroff?

  Yeah, they said he, at his longest, they believe he stayed, he was kept awake for 126 hours, which is just

• 11:12Speaker 04

  Yeah.

• 11:12Michael 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.

• 11:26Speaker 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

• 12:09Speaker 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

• 12:45Speaker 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.

• 13:24Peter 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.

• 14:05Peter 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.

• 14:36Peter 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.

• 14:49Speaker 04

  Yes.

• 14:49Peter 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.

• 15:33Peter 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.

• 15:46Speaker 04

  Yeah.

• 15:47Peter 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.

• 16:04Speaker 04

  Right.

• 16:05Peter 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.

• 16:20Speaker 04

  Right.

• 16:22Peter Shamshiri?

  This is such a weird way to talk about it, and it's not something...

• 16:28Peter 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.

• 16:42Speaker 04

  Yeah.

• 16:42Peter 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.

• 16:54Speaker 04

  Yeah.

• 16:55Michael Liroff?

  Yes.

• 16:55Speaker 04

  Torturing people at CIA black sites.

• 16:57Michael 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-

• 17:12Peter Shamshiri?

  And acknowledges the existence of black sites.

• 17:14Michael Liroff?

  Yes.

• 17:14Speaker 04

  Yes.

• 17:14Peter 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.

• 17:37Michael 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.

• 18:16Michael Liroff?

  It's embarrassing for the director or deputy director of the CIA, like, personally, individually.

• 18:24Peter 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."

• 18:45Peter Shamshiri?

  But in this case, we are required to decide only a narrow evidentiary dispute.

• 18:50Michael Liroff?

  Hmm.

• 18:51Speaker 04

  Classic.

• 18:51Peter 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.

• 19:01Michael Liroff?

  Right.

• 19:01Speaker 04

  Pero, I have a butt.

• 19:04Peter Shamshiri?

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

• 19:09Michael Liroff?

  One of those two at least. Yeah.

• 19:11Peter Shamshiri?

  But.

• 19:11Michael Liroff?

  If not both, but yeah.

• 19:13Peter 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.

• 19:26Michael Liroff?

  Hmm.

• 19:27Peter 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.

• 19:47Speaker 04

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

• 19:52Peter Shamshiri?

  Right, right.

• 19:54Michael 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,

• 20:37Michael 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.

• 20:48Michael Liroff?

  It's so stupid.

• 20:49Peter Shamshiri?

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

• 20:53Michael 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.

• 21:37Speaker 04

  Yeah.

• 21:37Michael 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

• 22:08Speaker 04

  Yeah.

• 22:08Michael Liroff?

  in the middle of a hot war.

• 22:10Peter Shamshiri?

  And a decade off the largest war in human history.

• 22:14Michael 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?

• 22:36Speaker 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.

• 22:45Michael Liroff?

  Yeah.

• 22:46Peter 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.

• 23:11Michael Liroff?

  Of course, of course.

• 23:12Speaker 04

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

• 23:17Michael 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

• 23:57Michael 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

• 24:40Michael 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."

• 24:54Michael 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.

• 25:08Speaker 04

  Adjudication is kind of what you do. Yeah.

• 25:10Michael 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.

• 25:44Peter Shamshiri?

  What does that even mean?

• 25:45Speaker 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.

• 25:58Peter 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.

• 26:15Michael 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?

• 26:44Peter Shamshiri?

  He loves to concur. You gotta let him go, you know? He's a chatty boy. He wants to talk.

• 26:49Michael Liroff?

  Oh, God, I'm so, I was so angry reading it.

• 26:53Peter 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.

• 27:07Michael 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.

• 27:23Peter 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.

• 28:08Peter Shamshiri?

  Just think about what makes sense here. It's, it's, it's so fucking annoying.

• 28:12Michael 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.

• 28:56Speaker 04

  Kagan has another concurrence here in this, you know, we haven't mentioned yet. The seven to holding.

• 29:04Michael Liroff?

  Yeah.

• 29:05Speaker 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,

• 29:46Speaker 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.

• 30:22Michael Liroff?

  Yeah.

• 30:22Speaker 04

  That's Kagan's basic argument. But again, joining the holding here against Zubeta.

• 30:26Michael Liroff?

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

• 30:34Speaker 04

  Response to Kagan's concurrent specifically?

• 30:36Michael 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.

• 31:01Speaker 04

  Right.

• 31:02Michael 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.

• 31:35Speaker 04

  Yes.

• 31:36Michael Liroff?

  So he's like using its public knowledge against Zubeta.

• 31:43Speaker 04

  The person requesting, right?

• 31:45Peter Shamshiri?

  Right.

• 31:46Michael 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.

• 31:58Peter Shamshiri?

  We'll talk about Breyer in a second.

• 32:00Speaker 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.

• 32:44Speaker 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.

• 33:29Speaker 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

• 34:13Speaker 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.

• 34:56Speaker 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.

• 35:12Michael 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

• 35:33Speaker 04

  Yeah.

• 35:34Michael 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.

• 35:56Speaker 04

  Just like everybody else does right now?

• 35:58Michael Liroff?

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

• 36:05Speaker 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

• 36:49Michael Liroff?

  Yeah.

• 36:49Speaker 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?

• 37:23Peter Shamshiri?

  Yeah.

• 37:23Speaker 04

  He hates all of it, you know?

• 37:25Peter Shamshiri?

  Yeah, and he has a real distrust of government bureaucracy.

• 37:29Speaker 04

  Yes.

• 37:29Peter 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.

• 37:51Speaker 04

  Yeah.

• 37:52Peter 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.

• 38:05Speaker 04

  Yeah.

• 38:05Peter 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

• 38:38Michael Liroff?

  Yes.

• 38:39Peter 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.

• 38:52Michael 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?

• 39:06Peter Shamshiri?

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

• 39:11Speaker 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."

• 39:29Peter 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.

• 39:57Michael 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.

• 40:10Peter 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.

• 40:50Peter 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?

• 41:04Speaker 04

  Yeah. It's a procedural bar.

• 41:07Peter 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.

• 41:43Michael Liroff?

  Right.

• 41:44Speaker 04

  Yeah.

• 41:44Peter Shamshiri?

  You want to challenge the constitutionality of this program? Oops, confidential.

• 41:49Michael Liroff?

  Yeah.

• 41:50Peter 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.

• 42:04Michael 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?

• 42:26Peter Shamshiri?

  Yeah.

• 42:27Speaker 04

  Yes.

• 42:27Peter Shamshiri?

  Yeah.

• 42:27Michael 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.

• 42:39Speaker 04

  Right. You're not going to be like, you're not going to like run for office and like, yeah, yeah.

• 42:44Michael 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.

• 43:19Speaker 04

  Yeah.

• 43:19Michael Liroff?

  This case is very emblematic, I think, of the failures of the Democratic Party and the broad American public.

• 43:29Michael 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.

• 43:44Speaker 04

  Yeah.

• 43:44Michael 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.

• 44:12Speaker 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.

• 44:55Peter 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.

• 45:25Speaker 06

  Abu Zubeta cannot testify.

• 45:27Michael Liroff?

  Why not?

• 45:28Speaker 06

  Because he is being held incommunicado, he has been held in Guantanamo.

• 45:34Peter 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.

• 45:56Speaker 07

  Have you filed a habeas or something? Get him out?

• 45:59Speaker 06

  There's been a habeas proceeding pending in DC for the last 14 years.

• 46:03Speaker 07

  Well, how, don't they decide?

• 46:05Speaker 06

  There's been no action.

• 46:06Speaker 07

  They don't decide?

• 46:07Speaker 06

  I'm sorry?

• 46:08Speaker 07

  I mean, you just let it sit there? All right. I guess this is not relevant, but I'm just curious.

• 46:12Speaker 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.

• 46:21Speaker 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.

• 46:54Peter Shamshiri?

  Right. How they work in the real world.

• 46:56Speaker 04

  Yes.

• 46:57Peter 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

• 47:15Speaker 04

  Right.

• 47:16Peter Shamshiri?

  on a fucking like unconstitutional detention program and a network of offshore torture facilities. That's fucking why. You absolute moron.

• 47:28Speaker 04

  Yeah.

• 47:29Michael 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,

• 48:08Michael 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?

• 48:21Speaker 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.

• 48:32Michael 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?

• 48:39Speaker 04

  Why?

• 48:40Michael Liroff?

  Because immigration is part of the sovereign powers of the elected branches.

• 48:45Speaker 04

  Executive. Great.

• 48:47Peter Shamshiri?

  Yeah, it's sort of like immigrating.

• 48:48Michael Liroff?

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

• 48:53Speaker 04

  Great.

• 48:53Peter 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

• 49:34Peter Shamshiri?

  secrets. Now, should the Trump administration be able to completely insulate itself from liability and review by invoking the state secrets doctrine?

• 49:50Peter Shamshiri?

  I don't know, but it has worked for every administration in American history so far.

• 49:55Speaker 04

  Yeah.

• 49:55Peter 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?

• 50:10Speaker 04

  Yeah.

• 50:11Peter 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.

• 50:38Speaker 04

  Right.

• 50:38Peter Shamshiri?

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

• 50:46Speaker 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.

• 51:31Peter 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.

• 51:49Peter Shamshiri?

  Alien Enemies Act from the 1790s.

• 51:51Speaker 04

  Yeah.

• 51:52Peter 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.

• 52:04Michael Liroff?

  Yeah.

• 52:04Peter 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?

• 52:42Speaker 04

  What does freedom mean?

• 52:44Peter 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.

• 52:58Michael Liroff?

  Yeah. You gotta think a step ahead.

• 53:01Speaker 04

  Uh huh.

• 53:02Peter 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.

• 53:18Speaker 04

  Yeah. 7-2 Gorsuch and Sotomayor in dissent.

• 53:21Michael Liroff?

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

• 53:26Speaker 04

  Yes.

• 53:27Peter Shamshiri?

  Oh, definitely.

• 53:30Michael Liroff?

  Like, well, I mean, the failure of the liberals is not confined to the Supreme Court.

• 53:34Speaker 04

  Right, right.

• 53:35Michael Liroff?

  It's the entire liberal establishment.

• 53:38Speaker 04

  Yeah.

• 53:38Michael 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.

• 54:18Speaker 04

  Yeah.

• 54:18Peter 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.

• 54:27Michael Liroff?

  Yeah.

• 54:28Peter 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.

• 54:35Michael Liroff?

  Yeah.

• 54:36Peter 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.

• 54:55Speaker 04

  No, it's not an inevitability.

• 54:57Michael Liroff?

  Yeah.

• 54:57Speaker 04

  No.

• 54:58Peter 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.

• 55:08Michael Liroff?

  Yes.

• 55:08Speaker 04

  Yeah, and instead they built the anomaly, brick by brick.

• 55:17Peter 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.

• 55:28Speaker 04

  It's relevant.

• 55:29Peter Shamshiri?

  In times like these.

• 55:30Speaker 04

  It's prescient, it's germane even.

• 55:33Peter 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.

• 55:48Speaker 04

  Bye.

• 55:49Michael Liroff?

  Bye, everybody.

• 56:03Michael 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.

• 56:41Peter Shamshiri?

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