collaboration with foreign intelligence agencies even when that collaboration is for the specific purpose of violating human rights.Īs Chesney notes, much of the argument over Abu Zubaydah turned on this question: Is a secret still a secret if the whole world knows? 8 If numerous sources, including the President of Poland in office at the time of the relevant events, have confirmed that there was a CIA detention site in Poland, can the U.S. The bigger issue is that Abu Zubaydah shields disclosure of U.S. 7 While I agree that the Court’s decision muddled doctrine, the problem with the decision goes far beyond lack of clarity. 6 Chesney criticizes the Supreme Court for introducing “doctrinal confusions” into state secrets law in its decision upholding the government’s assertion of the privilege. Abu ZubaydahĪbu Zubaydah, whom the CIA waterboarded over eighty times and buried alive for hundreds of hours based on the false claim that he was a senior al Qaeda lieutenant, sought to subpoena the testimony of two CIA contractors for use by a Polish court investigating the potential complicity of Polish officials. The Core Problems with Abu Zubaydah and Fazaga A. Part I addresses the decisions themselves, while Part II places them in the context of the Court’s recent rulings on national security and executive power. This Response discusses what these decisions get wrong, how they fit within a larger pattern of Supreme Court decisions blocking judicial review of security policies, and why these developments matter for human rights, racial justice, and democracy. 5Īt a time when the United States should be ending its two-decade-long global war on terror, these decisions further empower the vast and largely unchecked national security state. Moreover, several Justices’ comments at oral argument suggest they are willing to dismiss litigation based on state secrets in a broader fashion than the Court has previously endorsed. While permitting the challenge to Federal Bureau of Investigation (FBI) surveillance to survive another day in that case, the decision stymies efforts to contest surveillance, especially where plaintiffs do not have independent evidence that they’ve been surveilled. Fazaga holds that a provision of the Foreign Intelligence Surveillance Act of 1978 4 (FISA) authorizing a court to review in camera the legality of surveillance does not displace the state secrets privilege. promises to keep such cooperation secret undermine the nation’s credibility, rather than honoring its word. Cooperation for such purposes deserves no protection from U.S. government even when those agencies know or suspect that their cooperation will facilitate egregious human rights violations. 3 But Chesney’s analysis understates both the problems with these decisions and the harm of judicial deference, especially for racialized communities long construed as national security threats.Ību Zubaydah shields foreign intelligence agencies’ covert cooperation with the U.S. I agree with Professor Robert Chesney that these decisions reflect a status quo orientation toward the state secrets privilege and reinforce deference to the executive branch in the name of national security. Fazaga 2 perpetuate the Supreme Court’s practice of insulating national security abuses from meaningful judicial review. The decisions last Term in United States v.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |