U.S. v. Zubaydah presents an opportunity for the Court to settle the scope of the state secrets privilege and the role of the judiciary when the government invokes a claim of privilege. The state secrets privilege, invoked by the executive, gives courts the power to prevent the disclosure of information that could pose a threat to national security by excluding the particular evidence or dismissing the case. The Court will decide whether the Ninth Circuit erred by rejecting the Government’s assertion of the state secrets privilege over the depositions of former CIA contractors requested by Abu Zubaydah. The Ninth Circuit held the depositions could proceed because not all of the requested information was privileged, and the district court must attempt to separate privileged from nonprivileged information in the disputed discovery before it may permissibly dismiss the claim.
This commentary argues that the Court should affirm the Ninth Circuit’s limited holding. Privileged and nonprivileged information should be separated when possible so that individuals can access nonprivileged information in the interest of justice while still preserving national security. Allowing the executive to make a blanket assertion of the state secrets privilege and demand that this assertion be given nearly absolute deference would establish a dangerous precedent. A standard of absolute deference would open the door to abuse of power. If an assertion of the state secrets privilege is incontestable, there is no limit to what can be kept from the public at any given time without reason. This is especially worrisome if it is permissible for the executive to be selective in its assertion of the privilege over similar information. Most importantly, affirming the Ninth Circuit’s rejection of the state secrets privilege is in line with precedent and ultimately beneficial for the public good.