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No. 20-
In The
Supreme Court of the United States
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UNITED STATES OF AMERICA, Petitioner, v.
ZAYN al-ABIDIN MUHAMMAD HUSAYN, aka ABU ZUBAYDAH, et al., Respondents.
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On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit
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BRIEF OF EVIDENCE LAW PROFESSORS AS AMICI CURIAE IN SUPPORT OF RESPONDENTS
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TIMOTHY K. FORD Counsel of Record M AC DONALD, HOAGUE , & BAYLESS 1500 Hoge Building 705 Second Avenue Seattle, WA 98104 (206) 622- timf@mhb.com Counsel for Amici Curiae ===================================COCKLE LEGAL BRIEFS (800) 225-6964============================================================================= WWW.COCKLELEGALBRIEFS.COM
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TABLE OF CONTENTS Page
TABLE OF AUTHORITIES ................................. iii
INTEREST OF AMICI CURIAE ......................... 1
SUMMARY OF ARGUMENT .............................. 2
ARGUMENT ........................................................ 3
I. THE JUDICIARY SHOULD EXERCISE REVIEW OF THE EXECUTIVE STATE SECRETS CLAIMS TO AVOID THE EQUIVALENT OF THE ABSOLUTE CROWN PRIVILEGE ................................ 3 A. THE CROWN PRIVILEGE OPER- ATED AS AN ABSOLUTE EXCLU- SION OF INFORMATION IN GREAT BRITAIN UNTIL 1968 ........................ 3 B. IN U.S. v. REYNOLDS, THIS COURT CITED TO THE ENGLISH DUNCAN v. CAMMELL, LAIRD & CO., LTD. CASE BUT DETERMINED THAT A “SOUND FORMULA OF COMPRO- MISE” WAS NEEDED IN STATE SE- CRETS CASES .................................... 6 C. THIS COURT SHOULD IMPOSE A PRESUMPTION LIKE THAT IN U.S. v. NIXON TO ENSURE THAT COURTS DO NOT COMPLETELY DEFER TO THE CLAIMS OF THE EXECUTIVE ON THE STATE SECRETS PRIVI- LEGE ................................................... 11
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TABLE OF AUTHORITIES Page
CASES
Abu Zubaydah v. Poland, No. 7511/13 (2014) ............
Beatson v. Skene, 157 E.R. 1415 (1860).................... 4, 5
Conway v. Rimmer, [1968] A.C. 910 ..................... 4, 5, 6
Duncan v. Cammell, Laird & Co., Ltd., [1942] A.C. 624 ............................................................. 5, 6, 9
Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir. 1983) ..... 7, 16
Halpern v. U.S., 258 F.2d 36 (2d Cir. 1958) ................
Heine v. Raus, 399 F.2d 785 (4th Cir. 1968) ...............
Herring v. U.S., 424 F.3d 384 (2005) ..........................
In re Herring, 539 U.S. 940 (2003) .............................
H.M.S. Bellerophon (1875) 44 LJR 5............................
In re Guantanamo Bay Detainee Litigation, U.S. District Judge Hogan, Case Management Or- der, Misc. No. 08-0442 (TFH) ..................................
In re Sealed Case (Espy), 121 F.3d 729 (D.C. Cir.
- ..........................................................................
In re Sealed Case, 116 F.3d 550 (D.C. Cir. 1997) .......
In re Sealed Case, 494 F.3d 139 (D.C. Cir. 2007) .......
In re Subpoena to Nixon, 360 F. Supp. 1 (D.D.C.
- .............................................................. 5, 16, 17
In re United States, 872 F.2d 472 (D.C. Cir.
- ..................................................................... 12
Jabara v. Kelley, 75 F.R.D. 475 (D.C.E.D. Mich.
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TABLE OF AUTHORITIES – Continued Page
McGehee v. Casey, 718 F.2d 1137 (D.C. Cir. 1983)... 8, 12
Molerio v. F.B.I., 749 F.2d 815 (D.C. Cir. 1984) ..........
Roviaro v. United States, 353 U.S. 53 (1957) .............
Trammel v. U.S., 445 U.S. 40 (1980) .............................
U.S. v. Ahmad, 499 F.2d 851 (3d Cir. 1974) ................
United States v. Burr, 25 F.Cas. 30 (C.C.D. Va.
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United States v. Nixon, 418 U.S. 683 (1974) ........ 10, 11
United States v. Reynolds, 345 U.S. 1 (1953) ..... passim
S TATUTES AND RULES
Exec. Order No. 13526, 75 FR 705 .............................
Intelligence Reform & Terrorism Prevention Act of 2004, Pub. L. 108-458, 118 Stat. 3640 ................
Rules of Procedure for the Foreign Intelligence Surveillance Court, 50 U.S.C. § 1803(g) .................
The Classified Information Procedures Act, Title 18, U.S.C. App. III ....................................................
O THER AUTHORITIES
Ann M. Murphy, All the President’s Privileges, 27 J.L. & Pol’y 1 (2018) .............................................
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TABLE OF AUTHORITIES – Continued Page
John Henry Wigmore, A Treatise on the System of Evidence in Trials at Common Law § 2192 (1904) ................................................................... 3, 18
Louis Fisher, The State Secrets Privilege: Rely- ing on Reynolds, Political Science Quarterly, Vol. 122, No. 3 (2007)......................................... 13, 14
Louis D. Brandeis, Other People’s Money and How the Bankers Use It, Frederick A. Stokes Co., 1913 ....................................................................
Mauro Cappelletti and C.J. Golden, Jr., Crown Privilege and Executive Privilege: A British Response to an American Controversy, 25 Stan. L. Rev. 836 (1973) ......................................................
Meredith Fuchs, Judging Secrets: The Role Courts Should Play in Preventing Unneces- sary Secrecy, 58 Admin. L. Rev. 131 (2006) ............
Nicole Hallett, Protecting National Security or Covering Up Malfeasance: The Modern State Secrets Privilege and its Alternatives, 117 Yale L.J. Pocket Part 82 (2007) ................................. 11, 12
Norman L. Eisen and Andrew M. Wright, Evi- dentiary Privileges Can Do Little to Block Trump-Related Investigations, American Con- stitution Society and Citizens for Responsibil- ity and Ethics in Washington (2018) ........................
Ramsey Clark, Attorney General’s Memoran- dum on the Public Information Section of the Administrative Procedure Act (1967) .....................
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TABLE OF AUTHORITIES – Continued Page
Report of the Committee on the Judiciary Report to Accompany S. 2533, The State Secrets Pro- tection Act................................................................
Report of the Senate Select Committee on Intel- ligence, Committee Study of the Central Intelli- gence Agency’s Detention and Interrogation Program, S. Report 113-288 (2014) ........................
Robert M. Chesney, State Secrets, and the Limits of National Security Litigation, 75 Geo. Wash. L. Rev. 1249 (2007) ..................................................
Robert Timothy Reagan, Keeping Government Secrets: A Pocket Guide for Judges on the State-Secrets Privilege, the Classified Infor- mation Procedures Act, and Court Security Officers, Federal Judicial Center ............................
Russell L. Weaver & James T.R. Jones, The De- liberative Process Privilege, 54 Mo. L. Rev. 279 (1989) .........................................................................
The Public Interest Declassification Board, A Vi- sion for the Digital Age: Modernization of the U.S. National Security Classification System (2020) .......................................................................
William D. Mitchell, Federal Rules of Civil Pro- cedure, Proceedings at the Institute at Wash- ington, D.C. October 6-8 (1938) ................................
William G. Weaver & Robert M. Pallitto, State Secrets and Executive Power, 120 Poli. Sci. Q. 85 (2005) ....................................................................
Ann Murphy, Professor, Gonzaga University School of Law
Alex Nunn, Assistant Professor, University of Ar- kansas School of Law
Roger Park, Distinguished Professor of Law and James Edgar Hervey Chair in Litigation
Paul F. Rothstein, Carmack Waterhouse Professor of Law, Georgetown Law
Rebecca Wexler, Assistant Professor, Berkeley Law ---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT The concept of “state secrets” is an evidentiary privilege. It is occasionally confused with other doc- trines. Privileges are to be strictly construed and nar- rowly interpreted because they impede the search for truth. The state secrets privilege should not operate as a monarchal “Crown Privilege.” When courts are con- fronted with state secrets claims, in camera review is necessary. Many factors should be considered when weighing government claims of state secrets privileges including the passage of time and the determination that secrets are already known. Only when there are no other remedies possible should cases be dismissed based on the state secrets privilege.
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ARGUMENT
Privileges are to be strictly construed because they impede the search for truth. Trammel v. United States, 445 U.S. 40, 50-51 (1980). As Dean Wigmore observed, the public has a right to “every man’s evidence.” 3 John Henry Wigmore, A Treatise on the System of Evidence in Trials at Common Law § 2192, at 2968 (1904). Pro- fessor Edward Cleary testified at a House Subcommit- tee meeting on privileges that they “often operate[d] as ‘blockades’ to the quest for truth.” Edward J. Imwinkel- reid, The New Wigmore: A Treatise on Evidence § 4.2.1(b). As Justice Brandeis wrote, “sunlight is said to be the best of disinfectants.” Louis D. Brandeis, Other People’s Money and How the Bankers Use It, Chapter V, What Publicity Can Do, Frederick A. Stokes Co., 1913 (referring to James Bryce (1st Viscount Bryce), The American Commonwealth, Vol. 2, Chapter LXXXVII, The Macmillan Co., 1896, p. 355).
I. THE JUDICIARY SHOULD EXERCISE RE-
VIEW OF THE EXECUTIVE STATE SECRETS
CLAIMS TO AVOID THE EQUIVALENT OF
THE ABSOLUTE CROWN PRIVILEGE
A. THE CROWN PRIVILEGE OPERATED
AS AN ABSOLUTE EXCLUSION OF IN-
FORMATION IN GREAT BRITAIN UN-
TIL 1968
Written evidence laws in the United States may be traced back to the year 1789. Charles Alan Wright, Kenneth W. Graham, Jr., and Ann M. Murphy, Federal
court presumably will be much more concerned with state secrets during an active war.
The Beatson holding was reiterated in a case de- cided during World War II. The House of Lords’ Vis- count Simon declared that the Admiralty Minister’s determination on state secrets was conclusive. Duncan v. Cammell, Laird & Co., Ltd., [1942] A.C. 624. Disclo- sure was denied even to members of the Judiciary. Mauro Cappelletti and C.J. Golden, Jr., Crown Privi- lege and Executive Privilege: A British Response to an American Controversy, 25 Stan. L. Rev. 836, 840 (1973). The English law as it existed in 1953 partially formed the basis of the Reynolds case discussed below. Reyn- olds, at 7.
In 1968, the House of Lords overruled the line of English decisions that gave the Crown the unimpeded right to withhold documents. Conway v. Rimmer. Com- parative law expert Professor Mauro Cappelletti found the reasoning in Conway to be like that of District Court Judge Sirica in his Nixon subpoena case Order. Cappelletti & Golden, at 836, citing to In re Subpoena to Nixon, 360 F. Supp. 1 (D.D.C. 1973) (Subpoena to Nixon); “Mauro Cappelletti (1927-2004) was one of the giants of 20th Century comparative law,” See: NYU Law, at: https://www.law.nyu.edu/global/globalvisitors program/globalresearchfellows/maurocappellettiglobal fellowincomparativelaw. The Lords held that finding a Minister’s privilege claim conclusive was at odds with the prevailing wisdom of most common law countries, including the United States. The Lords announced that
judges must have the final decision, and Lord Upjohn stated the following:
the claim of privilege by the Crown, while en- titled to the greatest weight, is only a claim and the decision whether the court should ac- cede to the claim lies within the discretion of the judge: and it is a real discretion. Conway, at 922. In his concurring opinion, Lord Morris stated that one of the main court functions is to weigh competing interests, and due to its independence, courts are in a better position to weigh the public interest with the needs of a particular government department. Con- way, at 956-57.
B. IN U.S. v. REYNOLDS, THIS COURT CITED TO THE ENGLISH DUNCAN v. CAMMELL, LAIRD & CO., LTD. CASE BUT DETERMINED THAT A “SOUND FORMULA OF COMPROMISE” WAS NEEDED IN STATE SECRETS CASES The Founding Fathers were opposed to govern- ment secrets. Historian Henry Steele Commager stated the following:
The generation that made the nation thought secrecy in government one of the instruments of Old-World tyranny and committed itself to the principle that a democracy cannot func- tion unless the people are permitted to know what their government is up to.
Indeed, the state secrets privilege is different from sev- eral other doctrines affecting the Executive. Wright, Graham, and Murphy, at § 5662, pp. 492-500. The priv- ilege is very narrow, and the Executive’s categorization of “top secret,” “secret,” or “confidential” is not binding on the Judiciary. McGehee v. Casey, 718 F.2d 1137, 1149 (D.C. Cir. 1983).
United States v. Reynolds, decided in 1953 at the height of the Korean War, is the leading case interpret- ing the law of state secrets. U.S. v. Reynolds, 345 U.S. 1 (1953). When a nation is at war, one would expect great deference to the decisions of the Executive. In Reyn- olds, widows of civilian passengers killed in a military B-29 plane crash sued the government under the Fed- eral Tort Claims Act. In their lawsuit, they requested the production of the Air Force’s official accident re- port. The government resisted providing it and claimed the privilege under Air Force regulations. After the District Court rejected that claim and sustained the families’ motion for production of the report, it reheard the case. On rehearing, the District Court considered a new letter provided by the Secretary of the Air Force and decided the case based on an official claim of the state secrets privilege. Both the District Court on re- hearing and the Third Circuit Court of Appeals or- dered production of the report. This Court reversed and remanded the case because it found the report privileged. It noted that it was a time of “vigorous prep- aration for national defense” and sustained the govern- ment’s claim. Reynolds, at 10.
This Court articulated that it disagreed with the “broad propositions” advocated by both the govern- ment and the plaintiffs in Reynolds. The government urged full exclusion without judicial review. The plain- tiffs claimed the government waived the state secrets privilege by the Tort Claims Act itself. This Court in- stead found a “narrower ground” for decision. It noted that judicial experience with the state secrets privilege in the United States was limited and looked to the English practice. Reynolds, at 7. Ultimately, this Court settled on analyzing the state secrets privilege with the “analogous privilege” against self-incrimination. It was an unusual choice as the two are very different. This Court focused on the proposition that in both sit- uations, disclosure could reveal the very thing the priv- ileges were designed to protect. Reynolds, at 8.
This Court decided against the full English Crown privilege imposed by the British Court in Duncan and made a key determination that some type of compro- mise was needed. Accordingly, a balance between the need for the material and the danger resulting from such a disclosure was imperative. Reynolds, at 10-11. Regrettably, the opinion is somewhat confusing, be- cause the Court also indicated that under certain cir- cumstances no such balancing should take place. On the one hand, this Court stated that “judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.” On the other hand, it pro- claimed that “the court should not jeopardize the secu- rity which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge
C. THIS COURT SHOULD IMPOSE A
PRESUMPTION LIKE THAT IN U.S. v. NIXON TO ENSURE THAT COURTS DO NOT COMPLETELY DEFER TO THE CLAIMS OF THE EXECUTIVE ON THE STATE SECRETS PRIVILEGE The Reynolds balancing test, though theoretically sound, is unworkable in practice. Courts have largely acquiesced in state secrets privilege cases. Report of the Committee on the Judiciary Report to Accompany S. 2533, The State Secrets Protection Act, citing to Rob- ert M. Chesney, State Secrets, and the Limits of Na- tional Security Litigation, 75 Geo. Wash. L. Rev. 1249 (2007). Professor Chesney found that since the early 1970s, cases alleging government misconduct have “frequently been the occasion for abrupt dismissal of lawsuits.” Id. In particular, criminal defendants have difficulty overcoming state secret privilege assertions by the government. Cassman, at 1203. Without judicial inquiry, the state secrets privilege “has proven a suc- cessful defensive litigation tactic.” Meredith Fuchs, Judging Secrets: The Role Courts Should Play in Pre- venting Unnecessary Secrecy, 58 Admin. L. Rev. 131, 135 (2006). This is exactly the problem outlined in Nixon. Courts must act as a bulwark against overzeal- ous use of the state secrets privilege to ensure the rule of law. Extreme deference to the Executive is no judi- cial review at all. An absolute state secrets privilege encourages government abuse. Nicole Hallett, Protect- ing National Security or Covering Up Malfeasance: The
Modern State Secrets Privilege and its Alternatives, 117 Yale L.J. Pocket Part 82 (2007).
There has been a “drastic increase” in the govern- ment’s use of the state secrets privilege since 9/11. Akremi, at 977. The Public Interest Declassification Board, which was established by Congress in 2004, found there is “widespread, bipartisan recognition that the Government classifies too much information for too long, at great and unnecessary cost to taxpayers.” A Vi- sion for the Digital Age: Modernization of the U.S. Na- tional Security Classification System, sent to then- President Trump on May 26, 2020, and available at: https://www.archives.gov/files/declassification/pidb/ recommendations/pidb-vision-for-digital-age-may-2020. pdf, Intelligence Reform & Terrorism Prevention Act of 2004, Pub. L. 108-458, 118 Stat. 3640.
The number of classified documents has also sky- rocketed. Fuchs, at 133. Courts are not bound by the classification system. McGehee, at 1149 (D.C. Cir. 1983). The classification itself may form the basis of the government’s claim of the privilege, as it has in this case, but courts “must assure themselves that the rea- sons for classification are rational and plausible ones.” Id. The government has used the state secrets privi- lege to dismiss cases over the extraordinary rendition program. Benjamin Bernstein, Over Before it Even Be- gan: Mohamed v. Jeppesen Dataplan and the Use of the State Secrets Privilege in Extraordinary Rendition Cases, 34 Fordham Int’l L.J. 1400 (2011). An outright dismissal of a case is a draconian result. In re United States, 872 F.2d 472, 477 (D.C. Cir. 1989). Dismissal
