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1 1 (June 16, 2022)

handle is hein.crs/govehwd0001 and id is 1 raw text is: Congressional_______ ~~Research Servi e Abu Zubaydah and the State Secrets Doctrine June 16, 2022 Zayn Al-Abidin Muhammad Husayn (also known as Abu Zubaydah) is a detainee at the U.S. Naval Station at Guantanamo Bay, Cuba. He was also the first suspected Al Qaeda detainee rendered into Central Intelligence Agency (CIA) custody at various black sites abroad for interrogation, including Detention Site Blue, allegedly in Poland, from December 2002 to September 2003. He sought depositions from two former CIA contractors who helped devise the CIA's Enhanced Interrogation Program, for submission to prosecutors in Krakow, Poland, to use in a criminal investigation of Polish officials' alleged complicity in the claimed unlawful detention and torture of Abu Zubaydah. The district court granted the application, and the United States filed a motion to intervene and to quash the subpoenas, citing, among other things, the state secrets privilege. On March 3, 2022, the Supreme Court upheld the government's assertion of the state secrets privilege and dismissed Abu Zubaydah's suit. The State Secrets Doctrine While some highlight that the state secrets doctrine is grounded in the Constitution's Article II duties, the United States Supreme Court has long recognized a common law government privilege against the disclosure of state and military secrets in civil litigation known as the state secrets privilege. The Court first articulated the modern analytical framework of this evidentiary privilege in the 1953 case of United States v. Reynolds. The Reynolds Court identified a two-step analysis for courts to evaluate an assertion of the privilege. The first requirement is a largely procedural hurdle to assure that the privilege is not lightly invoked, in which the head of the department in control of the information in question, after personal consideration, invokes the privilege in writing. The second requirement asks the court to evaluate whether there is a reasonable danger that disclosure will expose military matters which, in the interest of national security, should not be divulged. Reynolds recognized that it is the role of the judiciary to evaluate the validity of a claim of privilege, but it declined to require that courts automatically compel inspection of the underlying information. As the Court expressed, too much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect, while a complete abandonment of judicial control would lead to intolerable abuses. The privilege belongs exclusively to the government and cannot be validly asserted or waived by a private party. The government may intervene in cases in which it is not a party where litigation could potentially lead to the disclosure of secret evidence that would threaten national security. In most courts, the Congressional Research Service https://crsreports.congress.gov LSB10764 CRS Legal Sidebar Prepared for Members and Committees of Congress

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